Docket:
T-825-11
Citation: 2014 FC 285
Ottawa, Ontario, March 24, 2014
PRESENT: The
Honourable Mr. Justice Barnes
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BETWEEN:
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SAMUEL CHUA
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Plaintiff
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and
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THE ATTORNEY GENERAL OF CANADA
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(CANADIAN FORCES) AND
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THE MINISTER OF NATIONAL DEFENCE
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Defendants
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REASONS FOR ORDER AND ORDER
[1]
The Defendants moved under Rules 213 and 221 for
an Order striking out the Plaintiff’s Statement of Claim and dismissing this
action on the ground that no cognizable cause of action is pleaded, that there
is no genuine issue for trial and that at least some of the claims are
statute-barred.
[2]
The Plaintiff, Samuel Chua, argues that the
allegations set out in his Statement of Claim are worthy of being assessed and
the action should, therefore, continue to trial.
Issues
[3]
Should the Statement of Claim be struck and the
action dismissed?
Analysis
[4]
In terms of identifying a legally recognized
cause of action the Statement of Claim is not particularly illuminating. In 20
of its 22 paragraphs, a brief history of Mr. Chua’s military career is
outlined. The incident at the root of his claim was a head injury sustained
during a basketball game on February 4, 2004. This injury is alleged to have been aggravated by inadequate treatment by Canadian Forces medical staff and by
the Canadian Forces’ failure to accommodate. Ultimately, the Canadian Forces
moved to release Mr. Chua on medical grounds but, before that step could be
carried out, Mr. Chua requested his voluntary release. Later, he unsuccessfully
attempted to revoke his voluntary release and he was released from active
service.
[5]
The culminating paragraphs of Mr. Chua’s Statement of Claim state:
21. As
a result of signing the Voluntary Release, the Plaintiff has suffered emotional
pain and suffering and has lost income as a result of his inability to serve in
the Canadian Forces.
22. The
Plaintiff has also suffered emotional pain and suffering as a result of the
Canadian Forces’ harassment, discrimination and failure to accommodate the
Plaintiff for the Plaintiff’s Medical Condition.
The Plaintiff claims
against the Defendants:
a) General
damages in the amount of $500,000;
b) Damages
for loss of income in the amount of $700,000;
d) Prejudgment
interest pursuant to the Judgment Interest Act;
e) Such
further and other relief as this Honourable Court deems just; and
f) Costs.
[6]
It is undisputed that Mr. Chua initiated a
grievance in connection with the same matters that are described in his
Statement of Claim. Although a Grievance Board report dated November 16, 2010, recommended that Mr. Chua’s grievance be upheld in part, the process
has not been completed in the face of the initiation of this proceeding on May 12, 2011. Under Article 7.16 of the Queen’s Regulations and Orders for the
Canadian Forces, a grievance is suspended until any related litigation is
either discontinued or abandoned.
[7]
The Defendants say that the grievance process
provides an adequate alternative remedy that must be resolved before recourse
to a judicial remedy is available.
[8]
Rule 221(1) of the Federal Courts Rules,
SOR/98-106, allows the Court to strike out a pleading on the ground that it
discloses no reasonable cause of action and it may order that the action be
dismissed. Rules 213 and 215 authorize a party to move for summary judgment on
the basis that there is no genuine issue requiring a trial.
[9]
Much of Mr. Chua’s argument on the motion
was based on an assertion that his Charter rights have been infringed and that
the CF grievance process does not allow for Charter-based remedies. He says
that this jurisdictional gap can only be remedied by permitting this action to
proceed.
[10]
There are two fundamental problems with this
argument. First and foremost is the absence of any allegations of Charter
breaches in his Statement of Claim. In my view, in order to engage the
Charter, some reference to it must be made in the pleadings. The general
allegations he makes of discrimination and harassment are insufficient.
[11]
It is also noteworthy that Mr. Chua was unsuccessful in an earlier attempt to amend his Statement of Claim. In
dismissing that motion, Prothonotary Roger Lafreniere held as
follows:
Secondly,
the proposed amendments are no more than an indirect challenge of
administrative decisions taken by the CAF. As was stated by Madam Justice Layden-Stevenson in Graham v Her Majesty the Queen 2007 FC 210
(CanLII), 2007 FC 210, a plaintiff is required to exhaust the adequate
alternative remedy available to him. This includes not only the National
Defence Grievance process provided by section 29 of the National Defence Act
RSC 1985 c N-5 and Queen’s Regulations and Orders, chapter 7, but also
the parallel recourse mechanism available to him under the Canadian Human
Rights Act. If, at the completion of those processes, he is dissatisfied
with the decisions, he may seek judicial review. It is not open to him to
circumvent the processes mandated by Parliament through initiating an action
seeking the identical relief.
It is quite clear
from the above reasons that Prothonotary Lafreniere was unprepared to entertain
any attempt to amend the Statement of Claim because, in his view, the action
was bound to fail.
[12]
Mr. Chua relies
heavily on the decision in Bernath v Canada, 2005 FC 1232, 275 FTR 232,
where Justice Simon Noël held that a civil action raising Charter issues and
claiming damages should be allowed to proceed notwithstanding recourse to the
Canadian Forces (CF) grievance procedure. This decision was upheld on appeal:
see Canada v Bernath, 2007 FCA 400, [2007] FCJ No 1678. In the
appeal decision the Court was concerned that the Chief of Defence Staff (CDS)
had no authority to provide monetary relief to resolve the grievance.
Notwithstanding its stated preference for a simple and single adjudicative
process, the Court said it was unable to bridge the legislative gap (see
para 22).
[13]
The legislative landscape has changed since the
decisions in Bernath, above. The CDS now has the authority to award
financial relief of up to $100,000.00 and, until a grievor has exhausted all
other forms of potential recovery, it is premature to consider a claim to civil
damages even if it is based on allegations of Charter breaches.
[14]
There are several recent decisions that support
the point advanced in this case by the Ministers. In Kleckner v Canada, 2014 ONSC 322, [2014] OJ No 215, Justice Colin McKinnon dealt with a
case markedly similar to this one. Ms. Kleckner was a Captain in the CF.
She brought an action against the Attorney General claiming general, punitive
and aggravated damages based on alleged Charter breaches and tortious conduct
related to her CF employment. The Attorney General sought to have the action
dismissed on the basis that an adequate alternative remedy was available to Captain Kleckner through the CF statutory grievance procedure.
[15]
As with Mr. Chua, Captain Kleckner argued
that her claim to Charter remedies, including damages, was sufficient to permit
her action to move forward. Justice McKinnon disagreed and distinguished the Bernath
decisions, above, in the following way:
51 The decision
of Noël J. and that of the Court of Appeal dealt with the specific point
whether the Chief of Defence Staff could award damages for Charter
breaches. Noël J. held that there was no power to do so and the Federal Court
of Appeal agreed. In my view, the terrain has now changed since the Chief of
Defence Staff has power to make ex gratia payments in appropriate
circumstances, including for the infringement of Charter rights. More
importantly, Captain Kleckner has not yet availed herself of the grievance
procedure set out in the National Defence Act and it is entirely
premature to assess how her claims might be resolved.
[16]
After a thorough review of relevant case
authorities, Justice McKinnon concluded that the action could not proceed and
that Captain Kleckner was required to first resort to the CF grievance
mechanism to resolve her employment-related complaints. This point is
reflected in the following passage:
66 Applying these
principles of law to the case before me, I am firmly of the view that the
complaints of Captain Kleckner arise exclusively from her employment in the
Canadian Forces. Her complaints with respect to unfair treatment by her
superiors are exactly the sorts of complaints that the grievance mechanism
created by the National Defence Act is specially armed to deal with. I
find that Captain Kleckner clothed her complaints in Charter language
for the singular objective of attempting to avoid the Canadian Forces grievance
procedure. There are no exceptional circumstances that would take her case out
of the normal grievance process.
[17]
Justice Richard Mosley of this Court came to the same conclusion in Moodie v Canada, 2008 FC 1233, [2008] FCJ No 1601. There the plaintiff sought reinstatement to
the CF and Charter and tort-based damages. Justice Mosley also reviewed the
relevant jurisprudence and held that the plaintiff was required to exhaust the
CF grievance process before advancing a claim to judicial relief:
38 The primary
remedy that the applicant seeks is a declaration that he has been wrongfully
released from office and an order restoring him to office in the CAF. That is
clearly a form of redress that he could obtain through the grievance process.
Alternatively, he may be entitled to seek a disability pension for injuries
incurred during his service. It is simply premature to assume that a remedy
could not be provided through the administrative processes when the applicant
has failed to take advantage of them. And these are the type of administrative
decisions that are properly the subject of judicial review applications.
39 The Court of
Appeal in Bernath cited Prentice v. Canada (Royal Canadian Mounted
Police), 2005 FCA 395, [2006] 3 F.C.R. 135 to illustrate the point that the
plaintiff would find it difficult to make out a case for Charter
infringement. In Prentice, the plaintiff had brought an action in the
Federal Court claiming damages against the Crown for violation of his right to
security of the person. The Crown sought to have the action struck on the grounds,
among others, that the remedy sought could be claimed by filing grievances
under Part III of the Royal Canadian Mounted Police Act, R.S.C. 1985, c.
R-10 or Part II of the Canada Labour Code, R.S.C. 1985, c. L-2.
40 The Court of
Appeal in holding that the action was a disguised grievance or discrimination
complaint, struck out the Statement of Claim and dismissed the action. The
Court had this to say at paragraph 76 of its reasons:
...a plaintiff who
wishes to bring action against the Crown in civil liability for damages must
first exercise the remedies he or she is offered by administrative law. Section
24 of the Charter is not a life preserver for rescuing parties who fail
to exercise the remedies that they have under 'ordinary' laws. It is not the
role of the Federal Court to do things that the statutes assign to arbitrators
and ministers. It is quite simply not this Court's function to decide, in an
action brought under the Charter, whether a grievance or a claim for disability
pension is justified, let alone to determine the amount of damages or of the
pension that arbitrators or ministers could have granted if the matter had been
put to them.
41 Similarly,
this action is a disguised grievance and discrimination complaint and the
applicant has failed to exhaust the remedies that are available to him under
the statutory grievance procedure. In my estimation, it is plain and obvious
and beyond reasonable doubt that this action is premature pending the
completion of those proceedings and has no chance of success.
[18]
Justice Mosley
distinguished the Bernath decisions, above, on the basis that that case
was brought after the grievance process was finished and that the judicial
remedy being sought was unavailable through the grievance process. That
distinction applies equally to Mr. Chua’s claim. Mr. Chua’s
grievance is yet to be resolved and the CDS does have the authority to provide
an adequate remedy to him.
[19]
As in Kleckner and Moodie, above,
I am satisfied that Mr. Chua is required to pursue his outstanding
grievance to a conclusion and that a legal action cannot be advanced until that
has occurred. For that reason, Mr. Chua’s Statement of Claim is struck
out and this action is dismissed.
[20]
Mr. Chua is not optimistic that the CDS will be sympathetic to his
grievance, but until a final decision is rendered it is not possible to know
how it will be resolved. The Canadian Forces Grievance Board made
recommendations favourable to Mr. Chua’s complaints and one would
therefore assume that the CDS would be open to that advice or to some form of meaningful
alternative redress. If the CDS unreasonably resolves the grievance, Mr. Chua always has the option of seeking judicial review of that decision. In short, his legal
options will not be foreclosed by the dismissal of this action.
[21]
In light of this outcome, it is unnecessary to
deal with the other legal arguments advanced by the Ministers including the
statutory bars set out in the Canadian Forces Members and Veterans
Re-Establishment and Compensation Act, SC 2005, c 21 and in the Crown
Liability and Proceedings Act, RS, 1985, c C-50, s 9;2001, c 4, s 39(f).
Suffice it to say that Mr. Chua has received and continues to receive
compensation for his disability.
[22]
The Crown is seeking costs. Given its success
on this motion, mitigated in part by the Grievance Board’s favourable view of Mr. Chua’s outstanding grievance, costs of $850.00 are awarded to the Defendants.
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