Date:
20120523
Docket:
T-1183-10
Citation:
2012 FC 625
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 23, 2012
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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GUY VÉZINA
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Applicant
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and
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CHIEF OF THE DEFENCE
STAFF AND
ATTORNEY GENERAL OF
CANADA
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1] This is an application
for judicial review of a decision of the Chief of the Defence Staff (CDS) rendered
on June 15, 2010, in which the CDS partially upheld the applicant’s two
grievances by determining that he was on attached posting rather than temporary
duty and finding that the travel allowance to which he was entitled must be
calculated using 47 km as the distance between his place of residence and his
place of work instead of 41 km.
I. Facts
[2] The applicant is a
member of the Reserve Force and is part of the 6th field regiment (6th FR). His
place of residence is in the Municipality of L’Ange-Gardien. The applicant was
employed at the Land Force Quebec Area Training Centre (LFQA TC) in Valcartier
from May 29 to August 12, 2006, and from May 7 to August 11, 2007, for two temporary
assignments as sub-unit commander. Valcartier is located 47 km from the
applicant’s place of residence. The applicant travelled from his place of
residence to his place of work every day during these two employment periods.
[3] On December 12, 2006,
the applicant filed a grievance with the Commander of the 6th FR, claiming the travel
allowance for temporary duty (also “temporary service”) in accordance with the
terms of the Treasury Board of Canada Secretariat Travel Directive (TD) and
the Canadian Forces Temporary Duty Travel Instruction (CFTDTI) for the
aforementioned period in the summer of 2006.
[4] On May 22, 2007, the
applicant filed a second grievance, this time with the Commander of the LFQA TC,
claiming the travel allowance for temporary duty in accordance with the terms
of the TD and the CFTDTI as well as meal expenses for the aforementioned period
in the summer of 2007.
[5] On November 21, 2008, the
initial authority responded to the grievance of May 22, 2007, by granting the
applicant a travel allowance for a distance of 41 km, in accordance with
Compensation and Benefits Instruction 209.045 (CBI). The initial authority rendered
a similar decision on November 25, 2008, in respect of the applicant’s grievance
of December 12, 2006.
[6] In its decision, the
initial authority allowed that the applicant was on temporary duty during the periods
covered by his grievances, but concluded that he was in the same geographic zone
as his home unit. He therefore should not have been entitled to travel expenses;
however, his right to such expenses was acknowledged, since the CDS set aside that
restriction.
[7] On February 23, 2009, the
applicant challenged the initial authority’s two decisions before the CDS,
seeking the allowances and compensation originally claimed in his grievances.
[8] On May 6, 2009, the
Canadian Forces Grievance Board (CFGB) sent the applicant the files for his
grievances of December 12, 2006 and May 22, 2007. On August 2, 2009, the
applicant forwarded his additional submissions on his two grievance files to the
CFGB grievance officer.
[9] On November 16, 2009, the
CFGB conveyed its findings and recommendations to the applicant in respect of
his grievances, and enabled him to forward additional submissions. For the very
first time in the grievance process, the CFGB set aside the finding of
temporary duty rendered by the initial authority, and determined that the
applicant’s home unit was the LFQA TC and not the 6th FR, and consequently
ruled that Valcartier was a temporary place of work since it was located in the
applicant’s headquarters area insofar as his home unit, the LFQA TC, is located
within the geographical limits of Valcartier.
[10] On June 15, the CDS rendered
his decision.
II. Impugned decision
[11] First, the CDS noted that
the TD does not apply to persons whose travel is governed by another policy. In
this case, the Treasury Board had authorized allowances and expenses for CF
members in accordance with the terms of the CBI. As a result, the CDS concluded
that there is no inconsistency between the TD and the CFTDTI and that the CBI therefore
applies to the applicant’s situation.
[12] Subsequently, the CDS examined
the applicant’s status in order to determine whether he was on “temporary duty”
or “attached posting”. To this end, the CDS defined “attached posting” as an “assignment
for a period of less than one year during which the member temporarily serves
in a location other than the one to which he is normally deployed”. The
criteria for an attached posting are as follows:
- The member will be serving temporarily at a
unit or in an environment where allowances peculiar to that environment are
payable;
- There is no requirement for financial support other
than the cost of travel (to and from the attached posting) for the member and/or
allowances payable to the member because of separation from his family or personal
effects;
- Move of dependants, furniture and personal
effects is prohibited; and
- The commanding officer of
the unit to which a member is attached posted shall have authority over the
member as though the member had been posted.
Applicant’s record, CDS decision, pages 19 and 20.
[13] On the basis of this
definition, the CDS determined that the applicant had continued to hold a class
“A” reserve position while he was temporarily assigned to class “B” service. The
CDS pointed out that it is impossible to be both on “temporary duty” and “attached
posting” in the same location. The CDS then concluded that the applicant was on
attached posting and may not benefit from the allowances applicable to temporary
duty.
[14] The CDS noted that both
the initial authority and the CFGB determined that the applicant was eligible
for travel assistance pursuant to CBI 209.045. The CDS agreed with their
opinions on the matter. However, it granted the applicant travel assistance
based on the exact distance between his place of residence and his place of
work, i.e. 47 km and not the approximate calculation of 41 km made by
the initial authority.
[15] The CDS acknowledged that
he does not have a mandate to authorize expenses other than those approved by
the policies and directives of the Canadian Forces. Consequently, he cannot
grant the applicant the interest and additional allowances he was claiming.
[16] Finally, the CDS agreed
with the applicant about the fact that he belongs to the 6th FR, notwithstanding
the CFGB’s comments that he belongs to the LFQA TC. Nonetheless, the CDS is of
the opinion that such error of definition does not have any bearing on the
analysis and outcome of the applicant’s grievances.
III. Issues
[17] The applicant raised
several issues in his memorandum and oral submissions. After carefully
examining the file, I am of the view that the disposition of this judicial
review is based on the following issues:
(a) What
is the applicable standard of review?
(b) Could
the applicant raise a lack of procedural fairness, i.e. the fact that the CDS raised
a new argument in his decision to which the applicant did not have an
opportunity to make submissions?
(c) Is
the TD applicable in this case and, if so, is it incompatible with National
Defence’s CFTDTI and CBI?
(d) Did
the CDS err by concluding that the applicant was on attached posting and not temporary
duty during the periods covered by his grievances?
(e) Did
the CDS err by denying the claim for payment of interest and the additional
allowance provided for by the Civil Code of Québec, RSQ c C-1991?
IV. Analysis
(A) What
is the applicable standard of review?
[18] The decisions of the CDS in
respect of grievances are final and binding (National Defence Act, RSC,
1985, c N-5, section 29.11 (the Act)). Furthermore, it is important to consider
the fact that the CDS interprets and applies the policies and rules that he has
made and for which he is responsible. These are precisely the types of
decisions that are subject to the reasonableness standard, in accordance with Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir). The
reasonableness standard was the standard of review chosen by my colleague
Justice Boivin in Zimmerman v Canada (Attorney General), 2009 FC 1298 at
paragraphs 23 to 25, 358 FTR 139, and explicitly agreed with by the Federal
Court of Appeal (2011 FCA 43 at paragraph 21 (available on CanLII)).
[19] It does not apply to the issue
of whether the CDS erred by refusing to grant interest on the amounts awarded
under his decision and the allowance provided for by the Civil Code of
Québec. That issue must be assessed by applying the correctness standard
since that argument essentially raises a question of law and jurisdiction.
(B) Could the applicant raise a
lack of procedural fairness, i.e. the fact that the CDS raised a new argument
in his decision for which the applicant did not have an opportunity to make submissions?
[20] The applicant claimed for
the first time in his memorandum that the CDS had breached the rules of
procedural fairness by declaring that the applicant was on attached posting during
the two temporary employment periods covered by the grievances. These grounds were
never raised in the notice of application for judicial review.
[21] Rule 301(e) of the
Federal Court Rules, SOR/98-106, specifies that the notice of
application for review must include “a complete and concise statement of the
grounds intended to be argued”. The Court has repeatedly held that it will not
consider new grounds of review that have not been invoked in the notice of
application (see, for example, Hickey v Canada (Department of Fisheries and
Oceans), 2006 FC 998 at paragraph 34, 298 FTR 253; Campos Shimokawa v Canada
(Minister of Citizenship and Immigration), 2006 FC 445 at paragraph 31, 147
ACWS (3d) 863). This is to prevent the respondent from being prejudiced by not being
given an opportunity to address a new issue in an affidavit (see Métis National
Council of Women v Canada (Attorney General), 2005 FC 230 at paragraph 49,
265 FTR 162).
[22] In this case, the issue
of procedural fairness was never raised in the notice of application for
review, as established upon careful reading of such notice. Consequently, I
accept the respondents’ argument that there is no reason to consider this issue.
[23] In any event, the
evidence in the record establishes that there was no breach of the principles of
procedural fairness. In fact, the applicant knew full well (or at least should
have known) that it was important to establish whether he was on attached
posting or temporary duty in order to determine the allowances claimed. In its findings
and recommendations, the CFGB noted the following:
[translation]
The grievor referred to A-PM-245-001/FP001 (February
1, 2005) – Military Human Resources Records Procedures – which contains
the administrative provisions to be met for a member to be on attached
posting. The grievor indicated that the member’s consent had to be obtained
through a procedure set out in this policy and that that had not been done in
his case.
[Emphasis added]
Applicant’s affidavit and documentary exhibits, Exhibit
C, at page 3
[24] This excerpt clearly
shows that the applicant had made submissions to the CFGB for the purpose of
proving that he was on temporary duty and not on attached posting. Furthermore,
in a letter to the CDS dated February 23, 2009, the applicant expressed his
dissatisfaction with the initial authority’s decision as follows:
[translation]
Inappropriate application of the directives on attached
posting provided for in ref. A. This policy contains the administrative provisions
to be met for an attached posting, which requires the member’s consent
and cannot be done without his knowledge, and specific documentation to put it
into effect;
[Emphasis added]
Applicant’s affidavit and documentary exhibits, Exhibit
F, at page 000077
[25] This excerpt shows once
again that the applicant himself raised the issue of his status during the employment
periods in question. Consequently, he was at liberty to raise the issue of
procedural fairness in his notice of application for review if he deemed that
he had not been given an opportunity to make suitable submissions in that
respect. Since he failed to do so, this Court can consider only the grounds for
judicial review set out in his application.
(C) Is
the TD applicable in this case and, if so, is it incompatible with National
Defence’s CFTDTI and CBI?
[26] The applicant alleges
that there are inconsistencies between the specific rules that establish the
travel allowances payable to CF members and the general rules that establish the
travel assistance payable to public service employees. More specifically, the
applicant alleges that the CBI and CFTDTI, which apply to CF members, contradict
the TD, which applies to public service employees.
[27] It is true that sections 12
and 35 of the Act give the Treasury Board the power to regulate the pay, allowances
and reimbursement of expenses of officers and non‑commissioned members
and to prescribe their allowances and expenses. These sections read as follows:
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12.
(1) The Governor in Council may make regulations for the organization,
training, discipline, efficiency, administration and good government of the
Canadian Forces and generally for carrying the purposes and provisions of
this Act into effect.
…
(3)
The Treasury Board may make regulations
(a)
prescribing the rates and conditions of issue of pay of military judges;
(b)
prescribing the forfeitures and deductions to which the pay and allowances of
officers and non-commissioned members are subject; and
(c)
providing for any matter concerning the pay, allowances and reimbursement of
expenses of officers and non-commissioned members for which the Treasury
Board considers regulations are necessary or desirable to carry out the
purposes or provisions of this Act.
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12.
(1) Le gouverneur en conseil peut prendre des règlements concernant
l’organisation, l’instruction, la discipline, l’efficacité et la bonne
administration des Forces canadiennes et, d’une façon générale, en vue de
l’application de la présente loi.
…
(3)
Le Conseil du Trésor peut, par règlement :
a)
fixer les taux et conditions de versement de la solde des juges militaires;
b)
fixer, en ce qui concerne la solde et les indemnités des officiers et
militaires du rang, les suppressions et retenues;
c)
prendre toute mesure concernant la rémunération ou l’indemnisation des
officiers et militaires du rang qu’il juge nécessaire ou souhaitable de
prendre par règlement pour l’application de la présente loi.
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35. (1) The rates and
conditions of issue of pay of officers and non-commissioned members, other
than military judges, shall be established by the Treasury Board.
Reimbursements and allowances
(2) The payments that may be
made to officers and non-commissioned members by way of reimbursement for
travel or other expenses and by way of allowances in respect of expenses and
conditions arising out of their service shall be determined and regulated by
the Treasury Board.
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35. (1) Les taux et conditions
de versement de la solde des officiers et militaires du rang, autres que les
juges militaires, sont établis par le Conseil du Trésor.
Indemnités
(2) Les indemnités payables aux
officiers et militaires du rang au titre soit des frais de déplacement ou
autres, soit des dépenses ou conditions inhérentes au service sont fixées et
régies par le Conseil du Trésor.
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[28] It must be emphasized,
however, that the Act does not give the Treasury Board exclusive regulatory
power, since section 13 acknowledges that the Department of National Defence
has the power to make regulations in respect of any matter attributed expressly
to the Treasury Board in section 12:
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13.
Where in any section of this Act, other than section 12, there is express
reference to regulations made or prescribed by the Governor in Council or the
Treasury Board in respect of any matter, the Minister does not have power to
make regulations pertaining to that matter.
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13.
Le ministre ne peut prendre de règlements dans les domaines où la présente
loi, ailleurs qu’à l’article 12, attribue explicitement des pouvoirs
réglementaires au gouverneur en conseil ou au Conseil du Trésor.
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[29] Furthermore, the purpose
of the TD (which is not a regulation within the meaning of sections 12 and 13
of the Act) “is to ensure fair treatment of employees required to travel on
government business”. Its provisions are intended to ensure that public service
employees do not incur out-of-pocket expenses, but do not have the effect of
providing any additional source of income or remuneration whatsoever. To that
end, the application of the TD is as follows:
This directive applies to public service employees,
exempt staff and other persons travelling on government business, including
training. It does not apply to those persons whose travel is governed by other
authorities.
Respondent’s book of authorities, tab 6, at page
0269
[30] However, CF members are governed
by other authorities. The CBI is a policy that governs “questions of the
balance and allowances, reimbursements of travel expenses, and other expenses
incurred for military reasons by members of the CF [Canadian Forces]” (Applicant’s
record, volume 1 of 4, tab 8, at page 0160). In this respect, CBI Chapter 209
and the CFTDTI adopted under its authority deal specifically with matters
regarding travel and transportation expenses. It is moreover significant that
the CFTDTI generally has the same form, content and structure as the TD. The CDS
did not err by concluding that the TD does not apply where other specific
directives fully govern the travel expenses of CF members.
[31] This interpretation is borne
out by the first paragraph of the Policy Framework of the CFTDTI, which reads
as follows:
Section 1 – Policy Framework
(1) Base/Wing Commanders,
Commanding Officers and other designated members are responsible for the
application of the Canadian Forces Temporary Duty Travel Instruction (CFTDTI).
The CFTDTI provides the Treasury Board (TB) approved policy for CF members on
temporary duty (TD) travel and/or Attached Posting. Similar travel for
employees of the Public Service is governed by the National Joint Council (NJC)
Travel Directive.
[32] The CDS could therefore
conclude, as he did, that the TD does not apply to persons whose travel is governed
by other authorities. The applicant was on the wrong track when he tried to refer
to the definitions set out in the TD and to ignore the definitions stemming
from the CBI.
[33] The applicant also
attempted to assert that there were inconsistencies in the very framework of
the CFTDTI, and more specifically between paragraphs 2.3 and 2.4. According to
the applicant, while paragraph 2.3 establishes the precedence of the CFTDTI,
paragraph 2.4 gives precedence to the TD. These paragraphs set out the
following:
2.3 Application
The
CFTDTI applies to all CF members on TD and while proceeding to and from an attach
posting. It does not apply to members on relocation, local health care travel,
imposed restriction, separation expense or DCDS operations (unless the member is
on TD). In the event of any conflict between the CFTDTI and other
instructions or regulations made by TB [Treasury Board], the CFTDTI prevails.
[Emphasis added]
2.4 Authority of the Treasury Board
Payments made to members by way
of reimbursement for TD travel are determined and regulated by TB. The CFTDTI
is issued to members on behalf of the CDS and sets out the approved payments
determined and regulated by the TB, and provides administrative instruction for
members and units.
[34] I do not find this
argument convincing. It is difficult to believe that the CDS could have
contradicted himself in such an obvious manner. On the contrary, these two
paragraphs seem to me to be completely reconcilable. Far from contradicting
paragraph 2.3, paragraph 2.4 specifies that the amount of the allowances is set
out by the Treasury Board, while the circumstances under which a CF member is
entitled to receive such amounts are governed by the CFTDTI.
(D) Did the
CDS err by concluding that the applicant was on attached posting and not
temporary duty during the periods covered by his grievances?
[35] The applicant claimed
that the CDS erred by concluding that he was on attached posting rather than temporary
duty during his temporary employment at Valcartier in 2006 and 2007. Relying on
Chapter 7, Annex C of the Military Human Resources Records Procedures (A-PM-245-001/FP-001),
the applicant claims that the three conditions required for a posting were not
met in his case, that is: (1) the authorization of the commander of the home
unit and the posting unit; (2) the consent of the member transferred; and (3) the
posting must be the subject of a message written according to regulatory
requirements to emphasize the formal authority of the attached posting to the
parties involved.
[36] This argument was refuted
by Chief Warrant Officer Guy Pelletier, a grievance analyst with the office of
the Director General – Canadian Forces Grievance Authority. In his affidavit, Chief
Warrant Officer Pelletier noted that the applicant’s Military Personnel Record
Résumé included the code “ASG/ATT” for the periods covered by his grievances. This
code stands for “Assignment/Attached posting”, as it appears in the Action/Reason
Code Reference Guide filed in support of his affidavit as Exhibit A.
[37] Furthermore, Chief
Warrant Officer Pelletier pointed out (on the basis of Chapter 7, Annex C of
the Military Human Resources Records Procedures) that a member on attached
posting leaves his home unit (i.e. the location where he normally works) for a
period of less than one year for an assignment with another Canadian Forces
unit, which becomes his attached posting unit. Unlike a member on temporary duty,
a member on attached posting holds a position within an attached posting unit. The
member on attached posting reports to the commander of the attached posting unit
for the duration of his attached posting, unlike the member on temporary duty who
continues to report to the commander of his home unit for the duration of his
temporary duty outside his home unit. Yet the applicant held a position in Valcartier
during the summers of 2006 and 2007, as indicated on the “Canadian Forces Task
Plans & Operations” forms attached to the affidavit of Chief Warrant
Officer Pelletier as Exhibit F. This is another factor that tends to show that
the applicant was on attached posting at the LFQA TC in Valcartier during the
periods covered by his grievances.
[38] As for the fact that
there was no explicit attached posting message in the applicant’s file, Chief
Warrant Officer Pelletier testified that the “Canadian Forces Task Plans &
Operations” forms often substituted for an attached posting message and that
there was frequently no other message documenting the posting. Likewise, the applicant
arguably consented to these attached postings, which were promotions, even
though there is no explicit written document to that effect in his file. During
the hearing, the applicant mentioned that he would not have accepted the
positions at Valcartier had he have known that they were attached postings and
not temporary duties. Apart from the fact that this is inadmissible testimony,
there is no reference to this assertion in the file, and the applicant certainly
did not make such a statement in the submissions he forwarded to the CFGB after
reading its findings and recommendations.
[39] Considering all these
circumstances, the CDS could reasonably conclude that there were sufficient
factors to establish that the applicant was on attached posting. This is
clearly a possible, acceptable outcome which is defensible in respect of the
facts and the law, within the meaning of Dunsmuir cited above.
[40] Since the applicant was
not on temporary duty when he held the positions at Valcartier, he could not
claim the allowances set out in the CFTDTI. As previously mentioned, the CDS
nonetheless concluded that the applicant met the requirements for travel
assistance set out in CBI 209.045 and granted him reimbursement for the distance
he travelled between his place of residence and his place of work, i.e. 47 km (instead
of the 41 km he had been granted by the initial authority on the basis of an
approximate calculation). Once again, this decision is, in my view, in
accordance with the applicable policies and regulations, and is therefore
perfectly reasonable.
(E) Did the CDS err by denying
the claim for payment of interest and the additional allowance provided for by the
Civil Code of Québec?
[41] The applicant claimed
that the CDS should have awarded him interest on the amounts granted under his
decision, as well as the additional allowance provided for by the Civil Code
of Québec from the filing of his grievances in 2006 and 2007. Yet his memorandum
contains only one paragraph in that respect in which he merely asserts that “the
CDS rendered an illegal decision by concluding that the interest and additional
allowances claimed by the applicant could not be paid to him” (paragraph 31). During
the hearing, he was scarcely more explicit about the legal merit of this
application.
[42] Under these
circumstances, it would be inappropriate for the Court to go into vague
theoretical considerations to confirm or deny the applicant’s contention. Suffice
it to say that neither section 36 of the Federal Courts Act, RSC 1985, c
F-7, on which the applicant vaguely based his argument, nor section 31 of the Crown
Liability and Proceedings Act, RSC1985, c C-50, authorizes interest to be
granted in a situation like the present one. These sections read as
follows:
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Federal Courts Act, RSC
1985, c F-7
36.
(1) Except as otherwise provided in any other Act of Parliament, and subject
to subsection (2), the laws relating to prejudgment interest in proceedings
between subject and subject that are in force in a province apply to any
proceedings in the Federal Court of Appeal or the Federal Court in respect of
any cause of action arising in that province.
Prejudgment
interest — cause of action outside province
(2)
A person who is entitled to an order for the payment of money in respect of a
cause of action arising outside a province or in respect of causes of action
arising in more than one province is entitled to claim and have included in
the order an award of interest on the payment at any rate that the Federal
Court of Appeal or the Federal Court considers reasonable in the
circumstances, calculated
(a)
where the order is made on a liquidated claim, from the date or dates the
cause of action or causes of action arose to the date of the order; or
(b)
where the order is made on an unliquidated claim, from the date the person
entitled gave notice in writing of the claim to the person liable therefor to
the date of the order.
Interest
on special damages
(3)
Where an order referred to in subsection (2) includes an amount for special
damages, the interest shall be calculated under that subsection on the
balance of special damages incurred as totalled at the end of each six month
period following the notice in writing referred to in paragraph (2)(b) and at
the date of the order.
Exceptions
(4)
Interest shall not be awarded under subsection (2)
(a)
on exemplary or punitive damages;
(b)
on interest accruing under this section;
(c)
on an award of costs in the proceeding;
(d)
on that part of the order that represents pecuniary loss arising after the
date of the order and that is identified by a finding of the Federal Court of
Appeal or the Federal Court;
(e)
where the order is made on consent, except by consent of the debtor; or
(f)
where interest is payable by a right other than under this section.
Judicial
discretion
(5)
The Federal Court of Appeal or the Federal Court may, if it considers it just
to do so, having regard to changes in market interest rates, the conduct of
the proceedings or any other relevant consideration, disallow interest or
allow interest for a period other than that provided for in subsection (2) in
respect of the whole or any part of the amount on which interest is payable
under this section.
Application
(6)
This section applies in respect of the payment of money under judgment
delivered on or after the day on which this section comes into force, but no
interest shall be awarded for a period before that day.
Canadian
maritime law
(7)
This section does not apply in respect of any case in which a claim for
relief is made or a remedy is sought under or by virtue of Canadian maritime
law.
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Loi
sur les Cours fédérales,
LRC 1985, c F-7
36.
(1) Sauf disposition contraire de toute autre loi fédérale, et sous réserve
du paragraphe (2), les règles de droit en matière d’intérêt avant jugement
qui, dans une province, régissent les rapports entre particuliers
s’appliquent à toute instance devant la Cour d’appel fédérale ou la Cour
fédérale et dont le fait générateur est survenu dans cette province.
Intérêt
avant jugement — Fait non survenu dans une seule province
(2)
Dans toute instance devant la Cour d’appel fédérale ou la Cour fédérale et
dont le fait générateur n’est pas survenu dans une province ou dont les faits
générateurs sont survenus dans plusieurs provinces, les intérêts avant
jugement sont calculés au taux que la Cour d’appel fédérale ou la Cour
fédérale, selon le cas, estime raisonnable dans les circonstances et :
a)
s’il s’agit d’une créance d’une somme déterminée, depuis la ou les dates du
ou des faits générateurs jusqu’à la date de l’ordonnance de paiement;
b)
si la somme n’est pas déterminée, depuis la date à laquelle le créancier a
avisé par écrit le débiteur de sa demande jusqu’à la date de l’ordonnance de
paiement.
Dommages-intérêts
spéciaux
(3)
Si l’ordonnance de paiement accorde des dommages-intérêts spéciaux, les
intérêts prévus au paragraphe (2) sont calculés sur le solde du montant des
dommages-intérêts spéciaux accumulés à la fin de chaque période de six mois
postérieure à l’avis écrit mentionné à l’alinéa (2)b) ainsi qu’à la date de
cette ordonnance.
Exceptions
(4)
Il n’est pas accordé d’intérêts aux termes du paragraphe (2) :
a)
sur les dommages-intérêts exemplaires ou punitifs;
b)
sur les intérêts accumulés aux termes du présent article;
c)
sur les dépens de l’instance;
d)
sur la partie du montant de l’ordonnance de paiement que la Cour d’appel
fédérale ou la Cour fédérale, selon le cas, précise comme représentant une
perte pécuniaire postérieure à la date de cette ordonnance;
e)
si l’ordonnance de paiement est rendue de consentement, sauf si le débiteur
accepte de les payer;
f)
si le droit aux intérêts a sa source ailleurs que dans le présent article.
Discrétion
judiciaire
(5)
La Cour d’appel fédérale ou la Cour fédérale, selon le cas, peut, si elle
l’estime juste compte tenu de la fluctuation des taux d’intérêt commerciaux,
du déroulement des procédures et de tout autre motif valable, refuser
l’intérêt ou l’accorder pour une période autre que celle prévue à l’égard du
montant total ou partiel sur lequel l’intérêt est calculé en vertu du présent
article.
Application
(6)
Le présent article s’applique aux sommes accordées par jugement rendu à
compter de la date de son entrée en vigueur. Aucun intérêt ne peut être
accordé à l’égard d’une période antérieure à cette date.
Droit
maritime canadien
(7)
Le présent article ne s’applique pas aux procédures en matière de droit
maritime canadien.
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Crown Liability and Proceedings Act, RSC 1985, c C-50
Prejudgment interest, cause of action within province
31. (1) Except
as otherwise provided in any other Act of Parliament and subject to
subsection (2), the laws relating to prejudgment interest in proceedings
between subject and subject that are in force in a province apply to any
proceedings against the Crown in any court in respect of any cause of action
arising in that province.
Prejudgment interest, cause of action outside
province
(2) A person who is entitled to an order for
the payment of money in respect of a cause of action against the Crown
arising outside any province or in respect of causes of action against the
Crown arising in more than one province is entitled to claim and have
included in the order an award of interest thereon at such rate as the court
considers reasonable in the circumstances, calculated
(a) where the order is made on a liquidated
claim, from the date or dates the cause of action or causes of action arose
to the date of the order; or
(b) where the order is made on an
unliquidated claim, from the date the person entitled gave notice in writing
of the claim to the Crown to the date of the order.
Special damages and pre-trial pecuniary losses
(3) When an order referred to in subsection (2)
includes an amount for, in the Province of Quebec, pre-trial pecuniary loss
or, in any other province, special damages, the interest shall be calculated
under that subsection on the balance of the amount as totalled at the end of
each six month period following the notice in writing referred to in
paragraph (2)(b) and at the date of the order.
Exceptions
(4) Interest shall not be awarded under subsection (2)
(a) on
exemplary or punitive damages;
(b) on interest accruing under this section;
(c) on an award of costs in the proceeding;
(d) on that part of the order that
represents pecuniary loss arising after the date of the order and that is
identified by a finding of the court;
(e) where
the order is made on consent, except by consent of the Crown; or
(f) where
interest is payable by a right other than under this section.
Judicial discretion
(5) A court may, where it considers it just to do so,
having regard to changes in market interest rates, the conduct of the
proceedings or any other relevant consideration, disallow interest or allow
interest for a period other than that provided for in subsection (2) in
respect of the whole or any part of the amount on which interest is payable
under this section.
Application
(6) This section applies in respect of the payment of
money under judgment delivered on or after the day on which this section
comes into force, but no interest shall be awarded for a period before that
day.
Canadian maritime law
(7) This
section does not apply in respect of any case in which a claim for relief is
made or a remedy is sought under or by virtue of Canadian maritime law within
the meaning of the Federal Courts Act.
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Loi sur la responsabilité
civile de l’État et le contentieux administratif, LRC 1985, c C-50
Intérêt
avant jugement — Fait survenu dans une province
31. (1) Sauf disposition contraire de toute autre
loi fédérale, et sous réserve du paragraphe (2), les règles de droit en matière
d’intérêt avant jugement qui, dans une province, régissent les rapports entre
particuliers s’appliquent à toute instance visant l’État devant le tribunal
et dont le fait générateur est survenu dans cette province.
Intérêt avant jugement — Fait non survenu dans une seule
province
(2) Dans
une instance visant l’État devant le tribunal et dont le fait générateur
n’est pas survenu dans une province ou dont les faits générateurs sont
survenus dans plusieurs provinces, les intérêts avant jugement sont calculés
au taux que le tribunal estime raisonnable dans les circonstances et :
a) s’il s’agit d’une créance liquide,
depuis la ou les dates du ou des faits générateurs jusqu’à la date de l’ordonnance
de paiement;
b) si la créance n’est pas liquide, depuis la date à
laquelle le créancier a avisé par écrit l’État de sa demande jusqu’à la date
de l’ordonnance de paiement.
Perte
antérieure au procès ou dommages-intérêts spéciaux
(3) Si
l’ordonnance de paiement accorde une somme, dans la province de Québec, à
titre de perte pécuniaire antérieure au procès ou, dans les autres provinces,
à titre de dommages-intérêts spéciaux, les intérêts prévus au paragraphe (2)
sont calculés sur le solde du montant de la perte pécuniaire antérieure au
procès ou des dommages-intérêts spéciaux accumulés à la fin de chaque période
de six mois postérieure à l’avis écrit mentionné à l’alinéa (2)b)
ainsi qu’à la date de cette ordonnance.
Exceptions
(4) Il
n’est pas accordé d’intérêts aux termes du paragraphe (2) :
a) sur les dommages-intérêts exemplaires ou punitifs;
b) sur les intérêts accumulés aux termes du présent
article;
c) sur les dépens de l’instance;
d) sur la
partie du montant de l’ordonnance de paiement que le tribunal précise comme
représentant une perte pécuniaire postérieure à la date de cette ordonnance;
e) si l’ordonnance de paiement est rendue de
consentement, sauf si l’État accepte de les payer;
f) si le droit aux intérêts a sa source ailleurs que
dans le présent article.
Discrétion judiciaire
(5) Le
tribunal peut, s’il l’estime juste, compte tenu de la fluctuation des taux
d’intérêt commerciaux, du déroulement des procédures et de tout autre motif
valable, refuser l’intérêt ou l’accorder pour une période autre que celle
prévue à l’égard du montant total ou partiel sur lequel l’intérêt est calculé
en vertu du présent article.
Application
(6) Le
présent article s’applique aux sommes accordées par jugement rendu à compter
de la date de son entrée en vigueur. Aucun intérêt ne peut être accordé à
l’égard d’une période antérieure à cette date.
Droit maritime canadien
(7) Le
présent article ne s’applique pas aux procédures en matière de droit maritime
canadien, au sens de la Loi sur les Cours fédérales.
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[43] Section 36 of the Federal
Courts Act cannot be used to claim prejudgment interest within the
framework of the internal grievance settlement process available to CF members
since this process is not an action before “the Federal Court of Appeal or the
Federal Court” within the meaning of this provision. The Court is seized with
an application for judicial review of a decision by a federal board, and not a
claim for damages stemming from a cause giving rise to an action against the
Crown.
[44] Finally, the applicant briefly
refers to Chapter 1016-10 of the Financial Administration Manual, which
specifies in section 2 that “An expense claim form is considered an invoice and
shall be processed in accordance with current expenditure management policies.”
Contrary to what the applicant claims, this provision does not create a
contract and is clearly insufficient to give rise to entitlement to interest,
especially since the “Purpose” of the Manual states in respect to the policy
that “nor does it identify specific entitlements”.
[45] The CDS was therefore
justified in deciding that he did not have the authority to grant the applicant
interest. In the absence of clear policies or directives in that respect, it
was not for the CDS to override Crown immunity.
V. Conclusion
[46] For these reasons, I am
of the opinion that the application for judicial review brought by the
applicant should be dismissed with costs.
JUDGMENT
THE
COURT RULES that the application for
judicial review is dismissed with costs.
“Yves
de Montigny”
Certified
true translation
Monica
F. Chamberlain
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