Hamm v. Canada, 2007 FC 597

 

 

 

Date: 20070606

Docket: T-1015-05

Citation: 2007 FC 597

Ottawa, Ontario, June 6, 2007

PRESENT:     The Honourable Mr. Justice Blais

 

 

BETWEEN:

 

TIMOTHY C. HAMM

Plaintiff

and

 

HER MAJESTY THE QUEEN

Defendant

 

 

 

 

REASONS FOR ORDER AND ORDER

 

[1]               These are two separate motions for summary judgment brought by the plaintiff in the action, Timothy C. Hamm (the plaintiff), pursuant to rule 213 (1) of the Federal Courts Rules, SOR/98-106, and by the defendant in the action, Her Majesty the Queen in Right of Canada (the defendant), pursuant to rule 213 (2) of the Federal Courts Rules. Alternatively, each party seeks to have portions of the other party’s pleadings struck out, as per rule 221 of the Federal Courts Rules.

 

BACKGROUND

[2]               The plaintiff was enrolled as a member of the Military Police (MP) branch of the Canadian Forces (CF) from 1990 until his official release on May 18, 2005. However, for the last three of those years, the plaintiff was continuously on stress leave.

 

[3]               This action by the plaintiff arises out of the harm allegedly suffered as a result of his arrest and detention on December 12, 2000, while on medical leave for stress-related reasons. Specifically, the plaintiff alleges that he suffered subsequent damage to his career opportunities, as well as adverse effects on his mental health.

 

[4]               On December 12, 2000, at approximately 10 a.m., the plaintiff received a phone call from his immediate superior, Sergeant Rice, informing him that he was to begin preparation for deployment to Inuvik on December 26, 2000. The exact tone and content of that conversation is subject to debate. The plaintiff alleges that he told Sgt Rice that he was on sick leave, that the conversation became heated, and that Sgt Rice then informed him that if ordered to go on deployment he would have to comply or be jailed. The plaintiff then alleges that Sgt Rice used profanities and that he hung up the phone in response. The defendant for his part alleges that during the telephone conversation, the plaintiff was disrespectful and rude to Sgt Rice and ultimately refused to go, or in the alternative, refused to acknowledge his obligation to go on this deployment and hung up the phone on his superior officer. The defendant maintains that, while Sgt Rice was aware that the plaintiff was on sick leave, he was not aware of the reason for it, and that at no time during the conversation did the plaintiff reveal the nature of the illness or state any medical reason that might preclude his deployment to Inuvik.

 

[5]               Shortly thereafter, two of the plaintiff’s MP colleagues were sent to his house with instructions to convey to the plaintiff an order to report to Sgt Rice for administrative or disciplinary actions, and to arrest him should he refuse. The plaintiff told them that he was on medical leave and did not have to go to work, as did his doctor whom the plaintiff called. The plaintiff was then placed under arrest and brought to the guardhouse. The plaintiff maintains that he was never informed of the reason for his arrest. Once there, he was brought to Sgt Rice’s office, where the defendant alleges that he continued to display insubordination and, ultimately, refused a direct order to stand at attention, thereby committing further service offences. He was kept there until 1 p.m., at which point he was informed that he was “unarrested” by Chief Warrant Officer Gauvin. Upon learning that the plaintiff’s medical leave was stress related, Sgt Rice apologized to the plaintiff for his actions in a meeting at the office of CWO Gauvin.

 

[6]               Following a complaint by Warrant Officer Hamm, the plaintiff’s brother, to the Deputy Provost Marshall Professional Standards (DPM PS), the Canadian Forces National Investigation Services (CFNIS) commenced an investigation on December 19, 2000, to determine whether the circumstances described in the complaint disclosed the commission of criminal or service offences by members of the MP. The DPM PS investigation was held in abeyance to await the completion of the CFNIS investigation.

 

[7]               On July 8, 2001, the CFNIS found that there was no evidence to support the allegations of witness tampering directed against CWO Gauvin and the two MPs who arrested the plaintiff. However, the CFNIS found that Sgt Rice should be charged with one count of Neglect to the Prejudice of Good Order and Discipline, contrary to paragraph 129(2)(b) of the National Defence Act, R.S.C. 1985, c. N-5, for breaching the Regulations by failing to ensure that the plaintiff’s commanding officer directed his recall to duty on December 12, 2000. Sgt Rice was subsequently charged and had his credentials suspended for 10 months.

 

[8]               On February 21, 2002, the investigation report of the DPM PS concluded that the evidence supported none of the allegations against the named subject members (Sgt Rice, CWO Gauvin, MCpl Paul and Cpl Murray) but was critical of WO Hamm and highly critical of the plaintiff. The DPM PS concluded that the plaintiff had breached paragraphs 4(h) and 4(l) of the Military Police Professional Code of Conduct, by supplying his brother with misleading information used as a basis for his lodging the complaints.

 

[9]               On April 15, 2002, the DPM PS directed the suspension of the plaintiff’s MP service credentials.

 

[10]           On April 30, 2002, WO Hamm asked the Military Police Complaints Commission (MPCC) to review the DPM PS investigation and the CFNIS investigation. On May 15, 2002, the plaintiff also lodged a complaint with the MPCC, regarding his arrest on December 12, 2000, the DPM PS investigation, and the subsequent actions taken against him by the DPM PS. On December 30, 2002, the Chairperson of the MPCC elected to proceed by way of a public interest investigation and to prepare a report without holding a formal hearing.

 

[11]           On October 1, 2002, the Department of Veterans Affairs awarded a military disability pension to the plaintiff pursuant to subsection 39(1) of the Pension Act, R.S.C. 1985, c. P-6, assessed at 40% disability. The basis for this pension award was the plaintiff’s claim of post traumatic stress disorder (PTSD), based in part on allegations that he had been subject to harassment and mistreatment in the workplace. The award was made retroactive to July 12, 2002.

 

[12]           On November 27, 2002, the Directorate of Military Careers at National Defence Headquarters authorized the promotion of the plaintiff to the rank of Master Corporal, but it was decided that the promotion would be held in abeyance until the suspension of the plaintiff’s MP credentials was resolved. The plaintiff was not informed of the promotion and learned of it for the first time on or about January 27, 2005, while going through material disclosed as a result of a request under the Access to Information Act, R.S.C. 1985, c. A-1.

 

[13]           On September 16, 2003, a pension adjudicator with the Department of Veterans Affairs confirmed the pension award. Thereafter, the plaintiff submitted further evidence seeking an increase in his disability pension on the basis that his disability was more severe than was originally indicated. On January 29, 2004, the plaintiff’s application was allowed, the pension was reassessed at 70% of disability, and the award was made retroactive to July 2002. In addition, the plaintiff was later awarded a further Special Award (i.e. an attendance allowance) in conjunction with his overall disability pension.

 

[14]           On October 20, 2003, the MPCC released its interim report in which it concluded that the plaintiff’s arrest was unnecessary and neither reasonable nor proportional to the violations allegedly committed by the plaintiff. The MPCC also concluded that the evidence did not support a finding that the plaintiff misled WO Hamm or violated the Military Police Professional Code of Conduct.

 

[15]           The interim report of the MPCC was submitted to the Provost Marshall, Colonel D.A. Cooper, who rejected the majority of the recommendations and provided reasons therefore. In his Notice of Action dated February 13, 2004, the Provost Marshall insisted that the matter was beyond the jurisdiction of the MPCC because the arrest of the plaintiff was part of an administrative procedure related to discipline within the military unit and that the MPs were not performing a policing duty or function.

 

[16]           The MPCC final report was released on July 14, 2004, and contained 45 findings and 10 recommendations, which essentially exonerated the plaintiff.

 

[17]           On October 18, 2004, the Military Police Credentials Review Board (MPCRB) convened and determined that there was insufficient evidence to establish, on a balance of probabilities, that the plaintiff knowingly suppressed, misrepresented or falsified information in a report or statement, or engaged in conduct that is likely to discredit the Military Police or calls into question his ability to carry out his duties in a faithful and impartial manner. Therefore, the members recommended that the plaintiff’s MP credentials be reinstated, a recommendation which was accepted by the Provost Marshall in a letter dated October 21, 2004.

 

[18]           The plaintiff notes that he has yet to be formally promoted or receive the salary and benefit associated with the promotion held in abeyance. However, as was already noted, the plaintiff was officially released from the CF on May 18, 2005.

 

[19]           In addition to the complaints referred to the MPCC and the MPCRB, the plaintiff also filed five separate grievances under section 29 of the National Defence Act, between December 2000 and February 16, 2005. The first four grievances flowed directly from the December 12, 2000 incident, while the latest grievance, which has yet to be resolved and was stayed pending the outcome of this action, relates to the abandonment of his promotion.

 

[20]           The plaintiff filed a statement of claim in the Federal Court on June 10, 2005 in which he seeks damages in the amount of $725,000.00 against the defendant, on the following grounds:

§         Under section 3 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, on the basis of negligence by employees, servants and agents of the defendant in their exercise of powers of arrest and detention with respect to the plaintiff;

§         For breach of the plaintiff’s right to life, liberty and security of the person as guaranteed by section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter);

§         For breach of the plaintiff’s right not to be arbitrarily detained or imprisoned, as guaranteed by section 9 of the Charter;

§         For breach of the plaintiff’s right, on arrest or detention, to be informed promptly of the reasons therefore, as guaranteed by paragraph 10(a) of the Charter;

§         For general, punitive and exemplary damages including, but not limited to, damages, pursuant to subsection 24(1) of the Charter;

§         For pre-judgment and post-judgment interests thereon in accordance with sections 36 and 37 of the Federal Courts Act, R.S.C. 1985, c. F-7;

§         Costs of this action.

 

[21]           On April 4, 2007, the defendant filed a notice of motion for an order pursuant to rules 213, 216 and 221 of the Federal Courts Rules.

 

[22]           On April 5, 2007, the plaintiff also filed a notice of motion for an order pursuant to rules 213, 216 and 221 of the Federal Courts Rules.

 

ISSUES FOR CONSIDERATION

[23]           The first issue to be considered by this Court will be whether the defendant’s motion should be granted. In doing so, this Court will answer the following questions:

1)      Should the Court exercise its discretion to strike all or portions of the plaintiff’s Statement of Claim as being beyond, or otherwise not appropriate for the exercise of, jurisdiction over the subject matter of the claim?

2)      Should the Court strike out the plaintiff’s negligence claim for being statute-barred, pursuant to section 9 of the Crown Liability and Proceedings Act?

3)      Should the Court strike out the plaintiff’s Charter claim for being time-barred, pursuant to section 269 of the National Defence Act?

 

[24]           Subsequently, the Court will consider whether the plaintiff’s motion should be granted, by answering the following question:

4)   Is the defendant estopped from denying the findings of fact of the MPCC and MPCRB and, consequently, should the Court grant the plaintiff’s motion for summary judgment? Alternatively, should the Court strike paragraphs 5, 6, 8 and 9 of the Amended Statement of Defence for being an attempt to re-litigate those findings of fact, which findings are res judicata?

 

TEST FOR SUMMARY JUDGMENT

[25]           The procedures for summary judgment are found at rules 213 to 219 of the Federal Courts Rules. The test to establish whether all of the elements are met for a summary judgment to be granted was elaborated in Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.) at paragraph 8. The seven general principles are as follows:

 

1. the purpose of the provisions is to allow the Court to summarily dispense with cases which ought not proceed to trial because there is no genuine issue to be tried (Old Fish Market Restaurants Ltd. v. 1000357 Ontario Inc. et al);²

 

2. there is no determinative test (Feoso Oil Ltd. v. Sarla (The))³ but Stone J.A. seems to have adopted the reasons of Henry J. in Pizza Pizza Ltd. v. Gillespie.⁴ It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial;

 

3. each case should be interpreted in reference to its own contextual framework (Blyth⁵ and Feoso);⁶

 

4. provincial practice rules (especially Rule 20 of the Ontario Rules of Civil Procedure, [R.R.O. 1990, Reg. 194]) can aid in interpretation (Feoso⁷ and Collie);⁸

 

5. this Court may determine questions of fact and law on the motion for summary judgment if this can be done on the material before the Court (this is broader than Rule 20 of the Ontario Rules of Civil Procedure) (Patrick);⁹

 

6. on the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so (Pallman¹⁰ and Sears);¹¹

 

7. in the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross-examined before the trial judge (Forde¹² and Sears).¹³ The mere existence of apparent conflict in the evidence does not preclude summary judgment; the court should take a "hard look" at the merits and decide if there are issues of credibility to be resolved (Stokes).¹⁴

 

[Footnotes omitted]

 

 

[26]           Additionally, in Paszkowski v. Canada (Attorney General), 2006 FC 198, at paragraph 38, Justice Richard Mosley held:

Parties responding to a summary judgment motion do not have to prove all the facts of their case, rather the evidentiary burden is to put forward evidence that shows there is a genuine issue for trial. The burden rests with the party putting forward the motion but all parties must put their best foot forward: MacNeil Estate v. Canada (Department of Indian and Northern Affairs), (2004), 316 N.R. 349, 2004 FCA 50.

 

[27]           However, it remains that mere denial of the allegations raised in the moving party’s pleadings is not sufficient, as stated in rule 215 of the Federal Courts Rules, which holds that:

 

ANALYSIS

1) Should the Court exercise its discretion to strike all or portions of the plaintiff’s Statement of Claim as being beyond, or otherwise not appropriate for the exercise of, jurisdiction over the subject matter of the claim?

 

[28]           The defendant maintains that this Court neither possesses, nor should be inclined to exercise, jurisdiction over the subject matter set out in the Statement of Claim, and therefore, the Statement of Claim should be struck, as per rule 221 of the Federal Court Rules.

 

[29]           In Sokolowska v. Canada, 2005 FCA 29, the Federal Court of Appeal stated the following with respect to rule 221:

¶ 14      Rule 221 of the Federal Court Rules, 1998, provides that a Statement of Claim may be struck out on the ground that it discloses no reasonable cause of action. The Supreme Court of Canada has, on a number of occasions, made it clear that the applicable test in deciding whether a pleading should be struck is whether it is plain and obvious that the claim discloses no reasonable cause of action. In Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980, Madam Justice Wilson reiterated the test in the following terms:

Most recently, in Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279, I made clear at p. 280 that it was my view that the test set out in Inuit Tapirisat was the correct test. The rest remained whether the outcome of the case was "plain and obvious" or "beyond reasonable doubt".

¶ 15      There can also be no doubt that where the Court does not have jurisdiction over the subject matter of the action, the Statement of Claim can also be struck. In Hodgson v. Emineskin Indian Band, [2000] F.C.J. No. 313 (F.C.T.D.) (Q.L.) at paragraph 10, Madam Justice Reed of the Federal Court puts this proposition in the following terms:

 

10. [...] The "plain and obvious" test applies to the striking out of pleadings for lack of jurisdiction in the same manner as it applies to the striking out of any pleading on the ground that it evinces no reasonable cause of action. The lack of jurisdiction must be "plain and obvious" to justify a striking out of pleadings at this preliminary stage.

 

[30]           The defendant first argues that this Court has already ruled that it has no jurisdiction to adjudicate upon disputes relating to rank or service of members of the CF given the nature of that service (Gallant v. The Queen in Right of Canada (1978), 91 D.L.R. (3d) 695).  In response, the plaintiff submits that the Gallant decision relied on by the defendant must give way to the decision by this Court in Olmstead v. Canada, [1990] F.C.J. No. 302 (QL), where it was held that the Court will not and must not decline jurisdiction over Charter claims advanced by members of the CF and that Gallant, above, does not apply to bar such claims. In Olmstead, above, Justice Collier stated the following:

The defendant has impressed upon this Court the unique character of the relationship between armed forces personnel and the Crown, which involves the abandonment of civilian status and the giving up of many civil rights of an ordinary person.  Based on that unique quality, this Court is asked to find that section 15 of the Charter, cannot be invoked by the plaintiff because he voluntarily assumed this "armed forces" package of rights and obligations.

 

 I am unable to make such a finding. To do so would, in my opinion, denigrate the whole purpose of the Charter and would be contrary to the liberal interpretation which that document deserves.  The defendant cannot take refuge in any kind of exception or rule of immunity derived from the common law so as to avoid giving effect to the Charter.  I am not persuaded the voluntary assumption of a profession means that one impliedly agrees to become subjected, without question, to all the rules which the governing body of that profession might choose to enact.  An individual who voluntarily enters into a profession or office does not automatically forfeit his rights under the Charter.  Every individual in Canada is guaranteed the equality provisions of section 15 and the defendant has failed to provide me with any evidence that would lead me to hold otherwise.

 

[31]           I agree with the plaintiff on this point: the Court is not barred from considering Charter claims directed at the Crown simply because they are brought forth by a member of the Canadian Forces.

 

[32]           Secondly, the defendant maintains that the plaintiff’s claim arises out of what is, in essence, a workplace dispute or internal military dispute. There is substantial and persuasive authority to the effect that disputes arising out of the terms and conditions of service of members of the CF, like employees of the Public Service of Canada, are to be dealt with by the comprehensive redress schemes applicable therein and not by the courts (Vaughan v. Canada, [2005] 1 S.C.R. 146). Even if this Court is not convinced that the language of the statute is strong enough to oust the jurisdiction of the courts, the defendant argues that it should find that the scheme is intended to be a significant and comprehensive means of internal resolution for matters that arise directly from internal acts and administration within the CF. In considering whether the courts should defer to the grievance process under the PSSRA, the Supreme Court of Canada wrote the following in Vaughan, above:

¶ 34      Firstly, the language of the PSSRA sends an unambiguous signal that in the run-of-the-mill case of benefits conferred by a regulation outside the collective agreement, the decision of the Deputy Minister or his or her designate should be final.

 

¶ 35      Secondly, the present dispute arises from the employment relationship and falls within the dispute resolution scheme set out in the PSSRA.

 

¶ 36      Thirdly, the appellant's claim to ERI could have been remedied in the s. 91 grievance procedure. As the Manitoba Court of Appeal stated in Phillips v. Harrison (2000), 196 D.L.R. (4th) 69, 2000 MBCA 150: "What is important is that the scheme provide a solution to the problem" (para. 80).

 

¶ 37      Fourthly, the appellant's legal position should not be improved by his failure to grieve the ERI issue. The dispute resolution machinery under s. 91 was there to be utilized. Efficient labour relations is undermined when the courts set themselves up in competition with the statutory scheme (St. Anne Nackawic, at p. 718; Weber, at para. 41; Regina Police, at para. 26). […]

 

¶ 38      Fifthly, I do not accept for reasons already expressed, the central assumption of the appellant's argument that comprehensive legislative schemes which do not provide for third-party adjudication are not, on that account, worthy of deference. It is a consideration, but in the case of the PSSRA it is outweighed by other more persuasive indications of clues to parliamentary intent.

 

¶ 39      Sixthly, where Parliament has clearly created a scheme for dealing with labour disputes, as it has done in this case, courts should not jeopardize the comprehensive dispute resolution process contained in the legislation by permitting routine access to the courts. […]

 

¶ 40      Seventhly, the fact that we are dealing with a labour dispute almost a decade old demonstrates (if demonstration is necessary) that more informal dispute resolution procedures are generally faster, cheaper, and get the job done.

 

¶ 41      Finally, the dispute in question is entirely straightforward. […]

 

[33]           In applying the considerations set out in Vaughan, above, the defendant submits the following:

i)           the language of the grievance scheme, coupled with reservations for other statutorily mandated resolution process, manifests an intent that the decision of the Chief of Defence Staff (CDS) be the final authority (see, for example, sections 29.11 and 29.15 of the National Defence Act);

ii)         the dispute clearly arises out of the historical and unique relationship of service flowing from the plaintiff to Her Majesty;

iii)        the claims could have been remedied, and in fact some have been, by the scheme;

iv)       there are grievance processes which are available and which cannot, without specific proof, be considered to raise a true conflict;

v)         there are facets of independent review and recommendation throughout the scheme and in particular, in relation to the core claims of the plaintiff;

vi)       Parliament has created a comprehensive scheme, with various overlapping mechanisms to deal with matters of discipline, promotion / rank, credentials, general grievances, and injuries such as those claimed by the plaintiff; it would do an injustice to such a scheme to allow routine matters contemplated to be dealt with thereunder to be brought to court instead of requiring resort to the more informal, generally faster and cheaper internal process.

 

[34]           The defendant also maintains that the plaintiff can claim and can be awarded, based upon the recommendation of the CDS, monetary compensation from the Deputy Minister of the Department of National Defence or his delegate, depending on the amount.

 

[35]           The plaintiff for his part maintains that there is no complete and comprehensive dispute resolution scheme available to him to hear all aspects of his claim, including his Charter claims, or to issue the remedies sought, including any remedy pursuant to subsection 24(1) of the Charter. For one thing, the plaintiff fully exhausted the grievance procedure without obtaining any meaningful remedy. The complaints were fully investigated and considered by the MPCC, only to have the MPCC’s findings and recommendations fall on deaf ears. In short, while vindicated, the plaintiff was left without remedy. Furthermore, the plaintiff states that it remains uncontroverted that none of the decision-making authorities to whom the plaintiff turned to hear his claim is a “court of competent jurisdiction” within the meaning of subsection 24(1) of the Charter. Furthermore, in applying the criteria identified in Vaughan, above, the plaintiff submits that his arrest and detention, the following suspension of his MP credentials and the suspension of his promotion, cannot reasonably be considered ‘run-of-the-mill’ or nothing more than a dispute arising from an employment relationship.

 

[36]           I agree with the defendant that the events of December 12, 2000, and the subsequent events that flowed from these events, have all been addressed in some way through the various internal process available to the plaintiff. The circumstances surrounding his arrest and the lawfulness of said arrest were investigated by the DPM PS, the CFNIS, and the MPCC, with the latter publishing a very detailed report which essentially supported the plaintiff’s position.  Moreover, the CFNIS conducted an investigation of Sgt Rice who, as a result, was charged with one count of Neglect to the Prejudice of Good Order and Discipline, contrary to paragraph 129(2)(b) of the National Defence Act, and had his credentials suspended for 10 months. As for the suspension of the plaintiff’s MP credentials, a thorough investigation also took place and the MPCRB, with the support of the Provost Marshall, restored his credentials.

 

[37]           That being said, the issue is whether the internal mechanisms relied on by the plaintiff now prevent him from bringing this action in negligence and for violation of his Charter rights, before this Court. While the MPCC did find in its final report that the plaintiff’s Charter right under paragraph 10(a) had been violated, it did not pronounce on the section 7 and section 9 rights of the plaintiff. Moreover, the plaintiff submits that neither the MPCC nor the MPCRB has the jurisdiction to issue Charter remedies, so that a claim under section 24 flowing from violations of sections 7, 9 and 10, could not be considered by these tribunals. The same is true of the grievance process under section 29 of the National Defence Act, presided over by the CDS. As stated by the Court in Vaughan, above, “courts will retain jurisdiction if the remedy sought is not one which the statutory scheme can provide”.

 

[38]           Subsection 24(1) of the Charter reads as follows:

 

[39]           In R. v. 974649 Ontario Inc., [2001] S.C.R. 575, the Supreme Court of Canada developed a test in order to determine whether a particular tribunal could be considered a “court of competent jurisdiction”. Since I do not believe that it is necessary, in the context of these motions, to apply this lengthy test, I will simply refer to a recent decision of the Federal Court in Bernath c. Canada, 2007 CF 104, where Justice Simon Noël found that the grievance mechanisms for the CF under the National Defence Act did not constitute a court of competent jurisdiction under section 24 of the Charter. While the decision did not deal with the MPCC or the MPCRB specifically, I believe that the analysis can still be applied in this case, particularly in light of the fact that the MPCC proceeded by way of a public interest investigation, and did not hold a public hearing on the matter. In Bernath, above, Justice Noël also considered whether the fact that the plaintiff had introduced an action before the Court seeking monetary compensation under the Charter could be considered an abuse of process in light of the fact that he also filed a grievance relating to the same events. Justice Noël concluded that there could be no abuse of process, since the decision-maker under the National Defence Act was not a court of competent jurisdiction under subsection 24(1) of the Charter. Justice Noël wrote at paragraphs 98 and 99:

¶ 98      Décider d'une question de droit découlant de la Charte m'apparaît être une question d'une toute autre nature que celle qui est foncièrement factuelle et qui nécessite une analyse des faits à la lumière de la documentation pertinente. Il serait faut de prétendre que, dans le cas des deux demandes, soit celle que constitue le grief déposé en vertu de l'article 29 de la Loi sur la défense nationale et celle que constitue l'action introduite par requête devant cette Cour, la trame factuelle et la réparation monétaire demandée ne s'apparente aucunement. Faut-il le préciser, le fondement juridique donnant naissance aux deux recours n'est de toute évidence pas le même. Dans le cas des griefs, le fondement juridique qui sous-tend sa résolution n'apparaît pas de lui-même. Certes qu'il y ait des renvois à certaines ORFC et à quelques lois, la décision du CEMD est en très grande partie une décision factuelle qui n'est précédée par aucune enquête. Dans le cas de questions d'ordre constitutionnel découlant de l'application de la Charte, le décideur compétent doit appliquer la loi suprême du pays à des faits donnés, propres aux circonstances d'une affaire. Il n'est pas nécessaire d'élaborer davantage sur cet aspect de la question sachant que le grief devant le CEMD et la documentation à l'appui ne référaient pas à une question de droit découlant de l'application de la Charte.

 

¶ 99      Comment peut-il y avoir abus de procédure alors que le décideur n'avait pas compétence pour trancher une question de droit en application de la Charte et d'y octroyer une réparation en conséquence?  Il apparaît clairement qu'il serait impensable de conclure à un abus de procédure compte tenu de la conclusion à laquelle que j'en arrive en regard de la Charte.

 

[40]           Consequently, I am not convinced that this Court should decline jurisdiction to hear this action, on the ground that the plaintiff’s claims should be dealt with exclusively under the comprehensive internal redress scheme available to members of the Canadian Forces, since it appears that the scheme in question may not be sufficient to address all of the plaintiff’s claims, in particular the plaintiff’s claim pursuant to subsection 24(1) of the Charter. Therefore, I will now consider separately the defendant’s arguments as to whether I should strike either or both the negligence claim and the Charter claims brought by the plaintiff.

 

 

2) Should the Court strike out the plaintiff’s negligence claim for being statute-barred, pursuant to section 9 of the Crown Liability and Proceedings Act?

 

[41]           On the specific issue of the plaintiff’s claim for negligence brought under section 3 of the Crown Liability and Proceedings Act, the plaintiff seeks compensation for the damage to his career opportunities, as well as for the adverse effects on his mental health, flowing from his arrest in December 2000. Section 3 of the Crown Liability and Proceedings Act provides:

 

[42]           With regards to the damage to the plaintiff’s mental health, the defendant notes that the plaintiff was already awarded compensation by way of a pension for PTSD, arising as a result of his military duties as a police officer, including the same events upon which he relies to support this claim. As per section 9 of the Crown Liability and Proceedings Act, the plaintiff cannot recover twice for the same wrong:

 

[43]           The defendant also relies on the Supreme Court of Canada decision in Sarvanis v. Canada, [2002] 1 S.C.R. 921, which discussed the underlying rationale of section 9 as an attempt to prevent double recovery. Justice Iacobucci stated at paragraphs 28 and 29:

¶ 28      In my view, the language in s. 9 of the Crown Liability and Proceedings Act, though broad, nonetheless requires that such a pension or compensation paid or payable as will bar an action against the Crown be made on the same factual basis as the action thereby barred.  In other words, s. 9 reflects the sensible desire of Parliament to prevent double recovery for the same claim where the government is liable for misconduct but has already made a payment in respect thereof.  That is to say, the section does not require that the pension or payment be in consideration or settlement of the relevant event, only that it be on the specific basis of the occurrence of that event that the payment is made.

 

¶ 29      This breadth is necessary to ensure that there is no Crown liability under ancillary heads of damages for an event already compensated.  That is, a suit only claiming for pain and suffering, or for loss of enjoyment of life, could not be entertained in light of a pension falling within the purview of s. 9 merely because the claimed head of damages did not match the apparent head of damages compensated for in that pension.  All damages arising out of the incident which entitles the person to a pension will be subsumed under s. 9, so long as that pension or compensation is given "in respect of", or on the same basis as, the identical death, injury, damage or loss.

 

[44]           Also, in Begg v. Canada (Minister of Agriculture), 2004 FC 659, Justice Douglas Campbell stated the following with regards to section 9 of the Crown Liability and Proceedings Act:

¶ 24      The case law acknowledges that the purpose of s.9 of the CLPA is to prevent double recovery, or enhanced or different damages, for the same incident or injury or loss where pension or compensation has been paid under a no-fault scheme analogous to workers' compensation (See Langille v. Canada (Minister of Agriculture), 44 F.T.R. 60 (T.D.); [1992] 2 F.C. 208 (F.C.A.); Sarvanis v. Canada, [2002] 1 S.C.R. 921; Marsot v. Canada (Department of National Defence), [2002] 3 F.C. 579 (T.D.)).

 

 

[45]           The defendant maintains that the evidence clearly demonstrates that the plaintiff seeks compensation arising out of the same events for which he is in receipt of a pension, which alone would be sufficient to bar this action. More importantly, the evidence supports the conclusion that the plaintiff sought and obtained compensation for the same damages, in particular, the emotional and psychological effects that are alleged to have arisen from his treatment following the December 2000 arrest.

 

[46]           I agree with the defendant that the plaintiff is barred under section 9 of the Crown Liability and Proceedings Act from bringing a claim for damages under section 3 of the Crown Liability and Proceedings Act based on the damage to his mental health, as he is already receiving such compensation through his disability pension. As for the alleged damage to his career, which is essentially a question of the loss of his promotion and all the benefits that would flow from that, I believe that the proper forum for addressing this claim is through the grievance process under section 29 of the National Defence Act, a process which the plaintiff has already initiated, but which was suspended pending the resolution of his civil claim. The plaintiff is seeking, through this grievance, the removal of all restrictions placed on this promotion and that the promotion be made effective as of the actual date it was intended to be, so that the plaintiff may receive all outstanding entitlements to such a promotion, including pay, allowances, pension and seniority. Essentially, if the plaintiff is successful with this grievance, any damage suffered with respect to his career advancement would be effectively remedied and could no longer support a negligence claim.

 

[47]           In the recent decision in Sandiford v. Canada, 2007 FC 225, Madam Justice Carolyn Layden-Stevenson considered an appeal by a member of the CF against a decision of a prothonotary striking his statement of claim on the ground that he had not exhausted the statutory grievance scheme. At paragraphs 26 and 28 of that decision, Justice Layden-Stevenson noted:

¶ 26      As a basic proposition, when Parliament creates statutory remedies and institutions designed specifically to provide redress to persons aggrieved, the court should not lightly intervene before those statutory remedies have been exhausted. Failure to pursue the available procedures does not render the remedy inadequate: Lazar v. Canada (Attorney General) (1999), 168 F.T.R. 11 (T.D.) aff'd. (2001), 271 N.R. 10 (F.C.A.).

 

[…]

 

¶ 28      The jurisprudence holds that the resolution mechanism existing through the grievance procedure in the National Defence Act constitutes an adequate alternative remedy that must be exhausted before an individual can turn to the court for redress: Anderson v. Canada (Canadian Armed Forces), [1997] 1 F.C. 273 (F.C.A.); Gallant v. Canada (1978), 91 D.L.R. (3d) 695 (F.C.T.D.); Jones v. Canada (1994), 87 F.T.R. 190 (T.D.); Pilon v. Canada (1996) 119 F.T.R. 269 (T.D.); Villeneuve v. Canada (1997), 130 F.T.R. 134 (T.D.); Haswell v. Canada (Attorney General (1998), 56 O.T.C. 143 (Gen. Div.) aff'd. (1998), 116 O.A.C. 395 (C.A.).

 

[48]           Justice Layden-Stevenson then applied the law to the facts of that particular case, and concluded as follows:

¶ 31      The genesis of Mr. Sandiford's complaint is the failure of his superiors to place him where he wished to be placed. That is a matter that clearly falls within the ambit of the grievance procedure. Mr. Sandiford's recourse is to pursue his grievance. He has an adequate alternative remedy. That remedy must be exhausted before he turns to the court.

 

[…]

 

¶ 34      To summarize, Mr. Sandiford must exhaust the adequate alternative remedy available to him. If, at the completion of that process, he is dissatisfied with the decision, he may seek judicial review. It is not open to him to circumvent the process mandated by Parliament through initiating an action at this time. Consequently, his action has no chance of success and Prothonotary Lafrenière was quite right to strike it without leave to amend.

 

 

[49]           I believe that the same can be said in this case. The damage complained of by the plaintiff with respect to his career can best be addressed through the internal grievance process and he must exhaust this process first. Should he be dissatisfied with the result of this process, he may then seek judicial review before this Court.

 

[50]           In other words, had the plaintiff pursued the internal remedy, then there is a fair chance that ‘compensation’ would also have been obtained for the alleged damage to his career, so that he would be clearly barred from bringing a negligence claim by section 9 of the Crown Liability and Proceedings Act.

 

[51]           While it is true that the plaintiff has not yet obtained a remedy through the grievance process, since the grievance process is automatically stayed when an action is brought before the courts, I agree with Justice Layden-Stevenson’s comment in Sandiford, above, that the plaintiff is the author of his own misfortune, in that his lack of remedy in this situation is the direct result of his decision to pursue legal actions, rather than to see the process through to the end. Therefore, I do not see why the plaintiff should be allowed to bring an action for negligence in this case, when he would not have been allowed to do so had he properly followed through with the internal grievance process.

 

[52]           Therefore, I agree with the defendant that the plaintiff’s claim for negligence under section 3 of the Crown Liability and Proceedings Act cannot succeed and should be struck, as it would lead to double-recovery, which is prohibited under section 9 of the Crown Liability and Proceedings Act.

 

 

3) Should the Court strike out the plaintiff’s Charter claim for being time-barred, pursuant to section 269 of the National Defence Act?

 

 

[53]           As discussed above, the defendant had argued that this Court should reject jurisdiction over this action since there was a complete and comprehensive dispute resolution scheme available to the plaintiff to hear all aspects of his claim. However, the recent decision from Justice Noël in Bernath, above, cast some doubt as to whether there existed such a scheme, given his finding that the CDS was not a court of competent jurisdiction to award damages pursuant to subsection 24(1) of the Charter. On that basis, I chose to retain jurisdiction over this action, and to consider the negligence claim and the Charter claims separately. Having rejected the negligence claim, I now turn to the Charter claims.

 

[54]           The defendant submits that the various Charter claims brought by the plaintiff in this action are time-barred, pursuant to section 269 of the National Defence Act, which reads as follows:

 

[55]           As the defendant notes, Parliament is not competent to legislatively preclude Charter relief in its entirety, but it is entitled to place time limits upon such relief (Kingstreet Investments Ltd. v. New Brunswick, 2007 SCC 1).

 

[56]           While I have agreed to retain jurisdiction to consider the validity of the plaintiff’s claim under subsection 24(1) of the Charter, the first thing to keep in mind is that section 24 is not a stand-alone provision. Rather, section 24 is a ‘remedies’ provision which must attach to a violation of another provision of the Charter, in order to take effect. In this case, the plaintiff argues that his rights have been violated under sections 7, 9 and 10(a) of the Charter, and that, as a consequence of these violations, he should be entitled to damages under subsection 24(1). Specifically, the plaintiff alleges that his arrest and subsequent detention were a breach of his right to life, liberty and security of the person as guaranteed by section 7, of his right not to be arbitrarily detained or imprisoned, as guaranteed by section 9, and of his right, on arrest or detention, to be informed promptly of the reasons therefor, as guaranteed by paragraph 10(a) of the Charter.

 

[57]           The problem with the plaintiff’s action is that all of these alleged violations of his Charter rights clearly relate directly to his arrest and detention on December 12, 2000, that is to say approximately four and half years prior to the plaintiff filing his action. As such, the defendant argues that the plaintiff’s action is time-barred, as per the operation of section 269 of the National Defence Act, which imposes a six-month limitation period on taking legal actions.

 

[58]           The plaintiff however asserts that there has been a ‘continuance of injury or damage’ such that the six-month limitation period runs only from the date of the discovery of the last known continuance of injury or harm, on or about January 27, 2005, which falls within the six-month limitation period. On the facts as pleaded by the plaintiff, the April 15, 2002 decision to suspend the plaintiff’s MP credentials was a discrete act clearly predicated on the December 12, 2000 arrest. It was, in effect, a continuance of the arrest. Moreover, on the facts as pleaded by the plaintiff, the November 27, 2002 decision to place in abeyance the plaintiff’s promotion to Master Corporal, pending resolution of the suspension of his MP credentials, was also a discrete act clearly predicated on the April 15, 2002 decision to suspend the plaintiff’s MP credentials. Like the credentials suspension decision on which it was premised, the promotion abeyance was, in effect, a continuance of the arrest. Therefore, the defendant’s suspension of the plaintiff’s MP credentials, and the defendant’s abeyance of the plaintiff’s promotion, both directly attributable to the December 12, 2000 arrest, were each a continuance of injury or damage within the meaning of section 269 of the National Defence Act.

 

[59]           Furthermore, while the abeyance of the plaintiff’s promotion occurred in November 2002, the plaintiff submits that the general rule of discoverability applies, such that the cause of action arises, for purposes of a limitation period, when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff (Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147).  In this case, the plaintiff filed an Access to Information Request on March 8, 2004, but only received the information on or about January 27, 2005.

 

[60]           While the defendant does not question the rule of discoverability, he does question the plaintiff’s interpretation of the notion of continuance of damages. The defendant argues that it is a well-known legal principle that damages arise as of the date of the injury; the fact that the damages are ongoing in the sense that they stem from a particular incident does not mean that the cause of action continues. The actual cause of action itself must continue and give rise to continuing damages before a claimant can assert that the limitation period continues to run. Furthermore, where, as in the case at bar, events in question are discrete, such as a claim for wrongful arrest, or other job promotional activities, and did not continue afresh to cause new and thereby ongoing damage (i.e. there is no ongoing tort), the action cannot be advanced (Smith v. Baltzer, [2001] N.B.J. No. 488 (Q.B.)).

 

[61]           On the facts of this case, I am more inclined to agree with the defendant’s interpretation of the notion of continuance of damages. While there is clearly a link between the events as described by the plaintiff, I do not believe that this link is strong enough so that the discovery of a loss of promotion in January 2005 could anchor a claim under sections 7, 9 and 10(a) of the Charter, for injury or damages resulting from an arrest that took place in December 2000.

 

[62]           Moreover, I have already stated that this is not the proper forum for the plaintiff to obtain a remedy for his loss of promotion, as it is clearly something that should be remedied through the internal grievance process. As such, it would be difficult for me to, on the one hand, refuse to consider a claim for negligence resulting in a loss of promotion because such damage should be compensated through the internal grievance process, and then on the other hand, to allow this loss of promotion to be the continuance of injury that anchors a claim for damages under subsection 24(1) of the Charter. After all, if the plaintiff pursues the internal grievance process for this loss of promotion, as he should have done in the first place, and obtains a remedy, then there will be no more “injury or damage” created by the loss of promotion that would allow for this “continuance”, and thus place the plaintiff’s claim within the limitation period.

 

[63]           As such, I agree with the defendant that the plaintiff is time-barred from bringing the various Charter claims, and so those portions of the statement of claim should also be struck.

 

[64]           Consequently, the defendant’s motion for summary judgment will be granted, as I am not satisfied that the plaintiff’s action discloses a genuine issue to be tried.

 

4) Is the defendant estopped from denying the findings of fact of the MPCC and MPCRB and, consequently, should the Court grant the plaintiff’s motion for summary judgment? Alternatively, should the Court strike paragraphs 5, 6, 8 and 9 of the Amended Statement of Defence for being an attempt to re-litigate those findings of fact, which findings are res judicata?

 

 

[65]           The plaintiff also sought summary judgment against the defendant, in whole or in part, with the exception of the determination of damages payable, pursuant to Federal Courts Rules 213, 216 or 218, on the basis that the defendant’s pleadings allege certain facts that were previously before the MPCC and the MPCRB, and that the defendant is thus seeking to re-litigate those findings of facts, which findings are res judicata. In the alternative, the plaintiff asked the Court to strike paragraphs 5, 6, 8 and 9 of the Amended Statement of Defence, pursuant to rule 221.

 

[66]           In light of my findings above, it will not be necessary to address the parties’ arguments in great detail. Suffice it to say that the plaintiff has failed to establish the necessary elements to be granted summary judgment. Essentially, the plaintiff is claiming that there are no issues to be resolved at trial other than the damages payable. Yet, in his reply to the defendant’s motion for summary judgment, the plaintiff insists that the defendant relies on hotly contested facts, the resolution of which will require a trial, as the interests of justice would not be best served were the important questions of fact raised by the defendant determined on the expedited basis entailed by the summary judgment motion. Unfortunately, the plaintiff cannot have it both ways.

 

[67]           The plaintiff also failed to convince this Court that it should grant the motion to strike the impugned paragraphs from the Amended Statement of Defence for disclosing no reasonable defence, not having met his burden of proving that the paragraphs sought to be struck are so clearly immaterial, frivolous, embarrassing or abusive that it is obviously forlorn and futile. Furthermore, I agree with the defendant that this motion to strike portions of the Amended Statement of Defence on such grounds should have been brought forth much earlier in the process (Dene Tsaa First Nation v. Canada, 2001 FCT 820).

 

[68]           Moreover, in light of the Court’s decision to grant the defendant’s motion for summary judgment, it is clear that the plaintiff’s motion cannot succeed. Therefore, the plaintiff’s motion pursuant to rules 213, 216 and 221 of the Federal Courts Rules will be denied.

 

ORDER

 

THIS COURT ORDERS that

1.                  The defendant’s motion for summary judgment and for striking the claim is allowed.

2.                  The plaintiff’s motion for summary judgment and for striking paragraphs 5, 6, 8 and 9 of the Amended Statement of Defence is denied;

3.                  This action is therefore dismissed;

4.                  One set of costs in favour of the defendant.

 

“Pierre Blais”

 

ANNEX

RELEVANT STATUTORY PROVISIONS

Federal Courts Rules, SOR/98-106

 

National Defence Act, R.S.C. 1985, c. N-5

 

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          T-1015-05

 

STYLE OF CAUSE:                          TIMOTHY C. HAMM and

HER MAJESTY THE QUEEN

                                                           

 

PLACE OF HEARING:                    Ottawa, Ontario

 

DATE OF HEARING:                      May 8 and 9, 2007

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          Blais, J.

 

DATED:                                             June 6, 2007

 

 

 

APPEARANCES:

 

Laura C. Snowball                                                                    FOR PLAINTIFF

                                                                                               

 

R. Jeff Anderson                                                                       FOR DEFENDANT

                                                                                               

SOLICITORS OF RECORD:

 

Burnet, Duckworth & Palmer LLP                                            FOR PLAINTIFF

Calgary, Alberta

 

John Sims, Q.C.                                                                       FOR DEFENDANT

Deputy Attorney General of Canada

Ottawa, Ontario