Docket: T-1300-11
Citation:
2015 FC 1151
Toronto, Ontario, October 8, 2015
PRESENT: Prothonotary Kevin R. Aalto
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BETWEEN:
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THE ESTATE OF
MORDRED HARDY, VETERAN, HELENA HARDY, KARL HARDY, BARTON HARDY, SANDRA HARDY
(MAHON) AND DAVID HARDY
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Plaintiffs
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and
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ATTORNEY
GENERAL OF CANADA
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Defendant
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ORDER AND REASONS
[1]
The motion before the Court by the Plaintiffs
seeks leave of the Court to issue an amended statement of claim which has been
previously struck out by order of the Court. Wrapped up in this motion is a
motion by the Crown to strike the action in any event as it fails to meet the
test for pleading and is bereft of any chance of success.
[2]
There were many issues raised in the written
representations of the parties and the oral submissions at the hearing. The
issues are varied and complex. The issues include limitation periods;
prejudice; failure to properly plead misfeasance in public office; lack of a
duty of care; whether the specific claims can be asserted by an Estate; whether
Honour of the Crown can be imported into non-aboriginal claims; and, whether
there is any viable claim under the Charter of Rights and Freedoms.
I.
Facts
[3]
To understand better these issues, a brief
overview of the facts is necessary. The following summary is taken from the
Proposed Amended Statement of Claim (the Claim). The circumstances giving rise
to the Claim began during WWII. The Claim involves a Veteran, one Mordred
Hardy, now deceased (the Veteran). In March, 1943, the Veteran was injured
during a military training exercise. Apparently, during that training exercise
a significant explosion occurred and as the Veteran was in close proximity to
the explosion, he was injured.
[4]
The Veteran was hospitalized and then
experienced trouble walking, problems with hearing, fever, disorientation, and
ongoing pains with his head, neck, back, and legs. Notwithstanding these
injuries, the Veteran was discharged from the hospital with a psychiatric
diagnosis of schizophrenia. It is alleged this diagnosis was incorrect and did
not refer to the physical injuries suffered by the Veteran. Thereafter, the
Veteran was unable to obtain regular employment. The Veteran, who worked with Bell Canada prior to joining the Navy, lost his employment and it is alleged that this
resulted from an improper diagnosis of schizophrenia. The Veteran’s wife then
became the sole bread winner for the family.
[5]
Subsequent to his discharge from the Navy, the
Veteran made several attempts to obtain compensation from the Department of
Veterans Affairs (DVA). His first attempt at compensation was in February,
1944. This application for compensation was based on suffering from
degenerative disc disease of the cervical spine arising from the injuries
sustained in the explosion. The Veteran received no response from the DVA. In
a second application later in February, 1944, the Veteran again sought
compensation. This request for compensation was not processed by the DVA as it
was not an application for pension entitlement. The Plaintiffs claim that the DVA
failed to assist the Veteran in filing a proper application. In a decision of
November 8, 1944, the Canadian Pension Commission (Commission) denied benefits
to the Veteran and did not recognize the physical injuries.
[6]
Nothing further occurred until the mid-1970s.
In April, 1975, the Veteran applied a third time for financial assistance and
submitted a pension application to the Commission on the basis of physical
disability. At this juncture, the Veteran had begun to suffer from arthritis
which exacerbated the prior injuries. In his application, the Veteran sought
the assistance of a Pension’s Advocate to assist in preparing and presenting
his application to the Commission. This third application was not processed
nor did a Pension’s Advocate provide assistance to the Veteran.
[7]
In 1997, the Veteran made a further application
to the Commission and on November, 1997 the DVA approved the grant of a pension
conditionally assessed at ten (10) percent. The DVA accepted the explosion in
1943 as a causative factor of the Veteran’s deteriorated physical condition.
The pension entitlement was retroactive to May, 1997. Apparently, the decision
of the Commission was never sent to the Veteran or any member of his family. The
Plaintiffs claim they became aware of the contents of the decision only in
2010.
[8]
The conditional grant of the pension was subject
to a new medical assessment although the Veteran received no correspondence
from the DVA.
[9]
Unfortunately, in 1999, the Veteran passed away.
[10]
It appears that in April, 2001 an internal
administrative review of the Veteran’s case was conducted by the DVA which
concluded that insufficient information was provided by the Veteran to grant
any benefits. In 2010, the spouse of the Veteran appealed the date of retroactivity
and claimed entitlement either from 1944 or, in the alternative, 1975. This
appeal resulted in a further decision of July 2, 2010 by a Review Panel. The
Review Panel found the 1975 application was satisfactory, and found that the
DVA’s failure to respond to the Veteran’s application related to administrative
difficulties within the DVA beyond the control of the Veteran.
[11]
The Review Panel granted an entitlement from
November 27, 1994 in accordance with Section 39(1) of the Pension Act.
The retroactivity was limited to this date because that was the maximum extent
of pension retroactivity available under the Pension Act. This decision
was appealed regarding the retroactivity and the Appeal Panel affirmed the 2010
decision of the Review Panel. The Plaintiffs claim that notwithstanding the
pension award as granted there were shortfalls including failure to pay certain
types of allowances including the full married rate.
[12]
To further complicate this claim, the wife of
the Veteran passed away in 2012 and more recently one of the four adult
children has now also passed away.
A.
The Plaintiffs
[13]
In the materials filed on the motion the Claim
included a different style of cause. The new proposed style of case names The
Estate of Mordred Hardy, Veteran, Helena Hardy, Karl Hardy, Barton Hardy,
Sandra Hardy (Mahon) and David Hardy. Karl Hardy is the spokesperson for the Plaintiffs
as he is the one giving instructions in relation to this case. In an affidavit
sworn March 5, 2015 provided to the Court at the outset of the hearing, Karl
Hardy deposes that he has written authorization from his remaining siblings.
II.
The Claim
[14]
The Claim seeks a range of remedies. The
remedies include the following:
a).
A declaration that the Defendant owed a duty of
care to the Veteran and breached that duty causing the Veteran and the
Plaintiffs directly and indirectly physical and emotional distress, loss of
income, and humiliation;
b).
The Defendant breached the Plaintiffs’ rights
pursuant to section 7 of the Charter;
c).
Damages pursuant to section 24 one of the Charter;
d).
A declaration of the limitation on the ability
to correct errors or failures of the Department pursuant to section 39 of the Pension
Act violates section 7 of the Charter and is therefore of no force
in effect;
e).
An accounting of shortfalls in payment of
pension benefits to the Veteran retroactive to 1994 and restitution of benefits
unfairly denied from 1943 to 1994;
f).
Damages for negligence including damages for
mental suffering and distress;
g).
Loss of employment;
h).
Reduced capacity for employment;
i).
An underpayment of pension benefits;
j).
Damages for misfeasance [in public office];
k).
Damages for vicarious liability for failing to
adequately train and/or supervise medical officers and personnel;
l).
General damages;
m).
Aggravated damages;
n).
Costs.
[15]
Part of the Claim for breach of a duty of care
includes an allegation that the Crown has breached a social covenant and social
contract owed to members of the Canadian Armed Forces. It is alleged that the
Crown breached the “Honour of the Crown”. This
latter claim is unique in this action in that Honour of the Crown is a concept
which has developed in the context of Aboriginal claims. It is not a cause of
action in a civil private law case.
III.
Issues
[16]
Against the facts as pleaded and the remedies
sought in the Claim, the following issues arise:
1.
Would the proposed claim, if allowed to be filed
ultimately be struck on the ground that:
a).
It does not disclose a cause of action in
misfeasance in public office, negligence, honour of the crown, or breach of any
Charter rights?
b).
Is this action barred, in any event by virtue of
the operations of sections
8 and 9 of the Crowns Liability and Proceedings Act?
2.
Is the claim prejudicial to the position of the
Crown?
[17]
Before embarking on a consideration of these
issues, it is necessary to first set out some general principles relating to
motions to amend and motions to strike.
A.
Motion to Amend
[18]
Rule 200 provides that an amendment by made
without leave “at any time before another party has
pleaded thereto”. However, this rule is qualified in the circumstances
of this case as this is a case managed action and leave is required in
accordance with prior orders of this Court regarding this action.
[19]
The general principles relating to amendments
are found in the well-known case of Canderel Ltd. v Canada (C.A.),
[1994] 1 F.C. 3 (FCA), wherein the Court stated “[a]n
amendment should be allowed at any stage of an action for the purpose of
determining the real questions and controversy between the parties, provided,
notably, that the allowance would not result in an injustice to the other party
not capable of being compensated by an award of costs and that it would serve
the interest of justice” [at para. 9]. Notably, the Federal Court of
Appeal has stated clearly that the two criteria of Canderel are mandatory
in that an injustice to the other party is capable of being compensated for by
an award of costs and, second, that the interest of justice would be served.
Both these criteria must be met in this case [see for example Sanofi-Aventis
Canada Inc. v Teva Canada Limited, 2014 FCA 65 at para. 15].
[20]
However, even if both elements of Canderel
are met, an amended claim must still overcome the hurdle of not being a claim
that would be struck out in any event. Thus, even if the Claim meets the
requirements of an amendment, it may still be scuttled on the shores of no
viable cause of action. Therefore, it is necessary not only to consider the
nature of the remedies sought in the Claim but the applicable law.
[21]
In Sivak v Canada, 2012 FC 272, the
Honourable Mr. Justice James Russell usefully summarized in detail the
well-established test for striking a pleading for disclosing no reasonable
cause of action and for being scandalous, frivolous and vexatious:
15. The
test in Canada to strike out a pleading under Rule 221 of the Rules is
whether it is plain and obvious on the facts pleaded that the action cannot
succeed. In this regard, the Supreme Court of Canada has noted that the power
to strike out a statement of claim is a "valuable housekeeping measure
essential to effective and a fair litigation." See Hunt v Carey Canada
Inc., [1990] 2 S.C.R. 959 and R v Imperial Tobacco Canada Ltd., 2011
SCC 42, at paragraphs 17 and 19.
16. In
determining whether a cause of action exists, the following principles are to
be considered:
a. The material facts pled are to be taken as proven, unless
the alleged facts are based on assumptive or speculative conclusions which are
incapable of proof;
b. If the facts, taken as proven, disclose a reasonable
cause of action, that is, one with some chance of success, then the action may
proceed; and
c. The statement of claim must be read as generously as
possible, with a view to accommodating any inadequacies in the form of the
allegations due to drafting deficiencies.
. . .
25. Edell
v Canada (Revenue Agency), [2010] GSTC 9, 2010 FCA 26, reaffirms the
fundamental rule that in a motion to strike the Court is narrowly limited to
assessing the threshold issue of whether a genuine issue exists as to material
facts requiring a trial. All allegations of fact, unless patently ridiculous or
incapable of proof, must be accepted as proved. The defendant who seeks summary
dismissal bears the evidentiary burden of showing the lack of a genuine issue.
26. The
fundamental rule, however, must take into account that no cause of action can
exist where no material facts are alleged against the defendant. See Chavali
v Canada, 2002 FCA 209.
. . .
31. There
are many cases that hold that an action cannot be brought on speculation in the
hope that sufficient facts may be gleaned on discovery to support the
allegations made in the pleadings. See, for example, AstraZeneca Canada Inc.
v Novopharm Ltd., 2009 FC 1209; appeal dismissed 2010 FCA 112.
32. In
fact, it is an abuse of process for a plaintiff to start proceedings in the
hope that something will turn up. A plaintiff should not be permitted to
discover the defendant to pursue such an action. See Kastner, above.
33. I think it is also
well-established that the rule that material facts in a statement of claim must
be taken as true in determining whether a reasonable cause of action is
disclosed does not require that allegations based upon assumptions and
speculation be taken as true
. . .
89. In George
v Harris, [2000] OJ No 1762, at paragraph 20, Justice Epstein, then of the
Ontario Superior Court of Justice, provided examples of what constitutes a
"scandalous," "frivolous" or "vexatious"
document:
i. A document that demonstrates a complete absence of
material facts;
ii. Portions of a pleading that are irrelevant, argumentative
or inserted for colour, or that constitute bare allegations;
iii. A document that contains only argument and includes
unfounded and inflammatory attacks on the integrity of a party, and
speculative, unsupported allegations of defamation;
iv. Documents that are replete with conclusions, expressions
of opinion, provide no indication whether information is based on personal
knowledge or information and belief, and contain many irrelevant matters.
90. A
statement of claim containing bare assertions but no facts on which to base
those assertions discloses no reasonable cause of action and may also be struck
as an abuse of process. Furthermore, as indicated above, a claimant is not
entitled to rely on the possibility that new facts may arise as the case progresses.
On the contrary, the facts must be pled in the initial claim. The question of
whether those facts can be proven is a separate issue, but they must be pled
nonetheless.
91. The
authorities cited above also show that when a particular cause of action is
pled, the claim must contain pleadings of fact that satisfy all of the
necessary elements of that cause of action. Otherwise, it will be plain and
obvious that the claim discloses no reasonable cause of action.
92. A
statement of claim will also be struck on the grounds that it is so unruly that
the scope of the proceedings is unclear. As stated by this Court in Ceminchuk
v Canada, [1995] FCJ No 914, at paragraph 10:
A scandalous, vexatious or frivolous action may not only be one in
which the claimant can present no rational argument, based upon the evidence or
law, in support of the claim, but also may be an action in which the pleadings
are so deficient in factual material that the defendant cannot know how to
answer, and a court will be unable to regulate the proceedings. It is an action
without reasonable cause, which will not lead to a practical result.
[22]
In coming to the conclusions I have, these
principles have been considered and applied.
IV.
Misfeasance in Public Office
[23]
As noted above, the Claim raises many different
possible causes of action. One such possible cause of action is misfeasance in
public office.
[24]
This cause of action requires deliberate and
unlawful conduct which would likely harm a claimant.
[25]
Odhavji Estate v Woodhouse, [2003] 3 S.C.R. 263, remains the leading authority setting out the
elements of this cause of action. Utilizing the tests as set out in at para.
23 of that decision as they apply to the Claim, they are paraphrased as
follows:
i.
Did any identifiable person in public office engage
in deliberate and unlawful conduct in her capacity as a public officer; and
ii.
Was that public officer aware both that her
conduct was unlawful and likely to harm the claimant?
[26]
In considering the plea of negligence and
misfeasance in public office a plaintiff must establish that not only did the
Crown negligently breach a duty to that plaintiff but demonstrate a causal
connection between the breach of duty and the injury and set out the actual
loss
[Sivak v Canada, supra at para. 46; Odhavji, supra at para. 32].
[27]
The Plaintiffs submit that the facts must be
taken as proven. The Plaintiffs assert that the Defendant is liable for
misfeasance in a public office and argue that the facts as set out in the Claim
support the cause of action of misfeasance in public office. The Plaintiffs
argument is that unknown servants, who are agents of the Crown, acted
maliciously or with serious careless or reckless indifference to carry out
their statutory or legal obligations owed to the Veteran which they knew would cause
damage to the Veteran.
[28]
These are bald allegations and lack any
particularity as to the identity of the wrongdoers involved in misfeasance.
This cause of action requires particularity. As Mr. Justice David Stratus of
the Federal Court of Appeal observed in Merchant Law Group v Canada,
2010 FCA 184:
[34] I agree
with the Federal Court’s observation (at paragraph 26) that paragraph 12 of the
amended statement of claim “contains a set of conclusions, but does not provide
any material facts for the conclusions.” When pleading bad faith or abuse of
power, it is not enough to assert, baldly, conclusory phrases such as
“deliberately or negligently,” “callous disregard,” or “by fraud and theft did
steal”: Zundel v Canada, 2005 FC 1612 (CanLII), 144 A.C.W.S. (3d) 635; Vojic
v. Canada (M.N.R.), [1987] 2 C.T.C. 203, 87 D.T.C. 5384 (F.C.A.). “The bare
assertion of a conclusion upon which the court is called upon to pronounce is
not an allegation of material fact”: Canadian Olympic Association v USA
Hockey, Inc. (1997), 1997 CanLII 5256 (FC), 74 C.P.R. (3d) 348, 72 A.C.W.S.
(3d) 346 (F.C.T.D.). Making bald, conclusory allegations without any
evidentiary foundation is an abuse of process: AstraZeneca Canada Inc. v
Novopharm Limited, 2010 FCA 112 (CanLII) at paragraph 5. If the requirement
of pleading material facts did not exist in Rule 174 or if courts did not
enforce it according to its terms, parties would be able to make the broadest,
most sweeping allegations without evidence and embark upon a fishing
expedition. As this Court has said, “an action at law is not a fishing
expedition and a plaintiff who starts proceedings simply in the hope that
something will turn up abuses the court’s process”: Kastner v Painblanc,
(1994), 58 C.P.R. (3d) 502, 176 N.R. 68 at paragraph 4 (F.C.A.).
[35] To
this, I would add that the tort of misfeasance in public office requires a
particular state of mind of a public officer in carrying out the impunged
action, i.e., deliberate conduct which the public officer knows to be
inconsistent with the obligations of his or her office: Odhavji Estate v
Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69 (CanLII) at paragraph 28. For
this tort, particularization of the allegations is mandatory. Rule 181
specifically requires particularization of allegations of “breach of trust,”
“wilful default,” “state of mind of a person,” “malice” or “fraudulent
intention.”
[29]
In reviewing the Claim, there are simply broad
and bald allegations of deliberate and unlawful conduct without any of the
essential and necessary facts to support such a cause of action. It is exactly
the type of pleading that Mr. Justice Stratus opined on in the Merchant Law
Group case. The allegations of misfeasance in public office cannot stand.
V.
Negligence
A.
Negligence
[30]
Negligence and duty of care have been much
discussed in the jurisprudence. The well-known Anns test is the basis
for a claim in negligence. In R v Imperial Tobacco, 2011 SCC 42, at
paras. 38-39, the Supreme Court affirmed the Anns test set out in Cooper
v Hobart, 2001 SCC 79, for liability in negligence:
i.
Do the facts as pleaded disclose a proximate
relationship between the plaintiff and the defendant wherein failure to take
reasonable care might foreseeably cause loss or harm to the plaintiff; and,
ii.
If the answer to the first question is yes are
there policy considerations which exist which outweigh recognizing a duty of
care.
[31]
In considering the plea of negligence and
misfeasance in public office the Plaintiffs must establish that not only did
the Crown negligently breach a duty to the Plaintiffs but demonstrate a causal
connection between the breach of duty and the injury and set out the actual
loss
[see, Sivak v Canada, supra at para. 46; Odhavji, supra at para.
32].
[32]
In the circumstances of this case, it can
certainly be said that the Veteran did not do well by the DVA. Indeed, if it
were the Veteran who had commenced this proceeding there would be sufficient
proximity and the Claim would survive a motion to strike. Unfortunately, that
is not the case.
[33]
Any duty of care is owed to the Veteran. It is
the Veteran who was injured by the Department’s alleged negligence. In
paragraph 39 of the Claim there is a lengthy list of allegations of
negligence. They are as follows:
39. The Defendant breached its duty of care owed to the Plaintiffs
by:
a. Failing to provide reasonable supervision during the
training exercise in 1943;
b. Failing to recognize and properly diagnose the Veteran’s
injuries following the explosion;
c. Failing to recognize and documents the discharge from
service was due to physical injuries rather than a nervous condition or as a
consequence of major mental illness;
d. Failing to assist the Plaintiff with his application in
1944;
e. Committing an error of law by failing to assist the
Plaintiff with his application in 1975;
f. Failing to meet its statutory duties in the treatment of
the Plaintiff in relation to his attempts at securing a pension;
g. Failing to take steps to remediate the clear error noted
in paragraph 33, above and;
h. Failing to uphold the honour of the crown in its promise
to ensure that injured veterans received adequate service, assistance and
compensation.
[34]
These are, for the most part, all directed
toward a duty owed to the Veteran. Subparagraphs (a) through (d) are all
directed toward the tragic events of 1943 and to the extent any duty is created
they relate solely to the Veteran. Similarly, subparagraph (e) exists only in
relation to the Veteran. This is so even though the paragraph refers to
Plaintiffs.
[35]
Subparagraph (f) speaks to statutory duties
relating to obtaining a pension. There is no indication how this could apply
to the grown up children of the Veteran. While the Pension Act, R.S.C.,
1985, c. P-6, which is relied upon by the Plaintiffs, does refer to “spouses” and “dependents”
it does not create a statutory duty of care. Rather, it is directed toward
individuals who fall within the requirements of the legislation. It does not
create a duty of care or a claim in negligence.
[36]
With respect to subparagraph (g) this is an
allegation that the Crown had a duty to remediate a “clear
error” made by the Entitlement Appeal Panel which held it was
statutorily bound by the limitations on retroactivity in the Pension Act.
This allegation is not part of the lexicon of negligence and engages an attack
on a decision of a properly constituted tribunal. If the decision was clearly
in error then an appeal or a judicial review should have been pursued. It is
not negligence as that concept has evolved in the jurisprudence.
[37]
Subparagraph (g) refers to a failure to uphold
the Honour of the Crown. This is an evolving concept and has been applied only
to claims relating to aboriginal rights. It is not a claim in negligence. If
anything, it is a separate claim and is discussed in greater detail below.
[38]
In an effort to legitimize the negligence
claims, the Plaintiffs relied upon Canada v Keeping, 2003 NLCA 21and Samimifar
v Canada (MCI), 2006 FC 1301, affirmed 2007 FCA 248. Neither of these
cases is analogous to the facts in this case and do not support the position of
the Plaintiffs.
[39]
At issue in Keeping was a claim in
negligence with respect to a named employee of the Ministry of Fisheries and
Oceans who improperly measured the gross tonnage of a vessel as part of the
processing of a crab licence application for the plaintiffs. The Court held
the plaintiffs were owed a duty of care and that it had been breached. This
was a case where the employee as part of the operations of the department had
failed to properly measure the vessel and it was found that he was not
qualified to measure vessels as he had no training and limited expertise [para.
40 of Keeping]. The issues did not engage policy. The plaintiffs were
the persons wronged including the son of the owner of the vessel as it was
determined that he had direct dealings with the department employee. The department
employee asked the son for assistance in measuring the boat and had direct
knowledge the involvement of the son in the business. The case would have had
application had the Claim in this action been by the Veteran. In this case,
there are no dealings with a specific DVA employee nor are there facts which
would engage the proximity between these Plaintiffs and the decisions made
which are at the heart of this case.
[40]
In Samimifar, the plaintiff sought
damages for failure of the Department of Citizenship and Immigration to process
his claim for permanent residence in a timely way. The Crown moved to dismiss
the claim by way of summary judgment. The Court dismissed the motion.
[41]
The facts of the case were unique. Mr.
Samimifar arrived in Canada in 1985 and for some 21 years while in Canada sought legal status as a permanent resident. He was given approval-in-principle in
1994 to accept and process his application. Through “inattention,
inaction, and delay” his
application did not proceed in a timely way and finally in 2003 he was denied
permanent residence status on the grounds that he was a member of a terrorist
organization. That decision was sent back for review and in the interim he
commenced an action in negligence against the Crown.
[42]
The Court observed that generally policy matters
do not engage issues of individual proximity [para. 45 of Samimifar].
The Court also reviewed at length the jurisprudence relating to the negligence
of the Crown. In particular, the Court considered Premakumaran v Canada,
[2005] FC 507, aff’d [2006] FCA 213 and Benaissa v Canada (Attorney General),
[2005] F.C.J. No. 1487.
[43]
In Premakumaran, a motion for summary
judgment dismissing the claim was granted. The case involved a married couple
who came to Canada under the category of Professional Skilled Immigrants. They
alleged that fraudulent misrepresentation and negligent misrepresentation
regarding the job category system and the use of processing fees. The trial
judge found that the Crown owes a duty of care to the public as a whole and not
to individual plaintiffs. The judge found that the first part of the Anns
test was not met and therefore dismissed the claim. The Court of Appeal upheld
the decision and observed as follows:
In this case,
however, no duty of care arises. As the Motions Judge correctly found, no
special relationship of proximity and reliance is present on the facts of this
case. There were no personal, specific representations of fact made to these
particular appellants upon which they could reasonably have relied. The printed
documentation and information given to them was merely general material for
them to use in making an application for immigrant status. As the Motions Judge
observed, it is not correct to say that someone "who picks up a brochure
or reads a poster at the High Commission is a 'neighbour'" and is owed a
duty as a result. More is required. The information given to the appellants
contained no guarantees of work, nor of guaranteed success in the licensing
procedure, nor that any particular assistance would be forthcoming. The
statement that Mr. Premakumaran would "have no trouble finding a job"
was made by his brother, not a counter clerk at the High Commission, as found
by the Motions Judge. There is no evidence of any special relationship that
could be relied on to support a duty in this case. [para. 24]
[44]
There were, however, specific facts which
distinguished the Mr. Samimifar’s circumstances. The hearings judge determined
that there was “more” which distinguished the
case from Premakumaran. Those facts included such matters as the
identity of an individual who it could be construed committed the tort. In
this case the Claim is devoid of any material facts which would bring the
Plaintiffs within the Anns requirements.
[45]
Further, in Benaissa, the proposition
that a process where a decision making body gathers information and comes to a
decision is not the subject of a claim in negligence [para. 37]. This was a
case of bald allegations that some unknown servant of the Crown had failed to
process an application in a timely way. The claim in Benaissa was
struck. The hearings judge in Samimifar distinguished the facts of Benaissa
and found that Mr. Samimifar had produced “disturbing
evidence” to demonstrate that the actions of officials “are far outside the of what we expect from our public
servants” [para. 67]. Thus, Mr. Samimifar’s case was allowed to
proceed.
[46]
Here, as noted, there is little but bald
assertions of negligence and the case falls within the parameters of both Premakumaran
and Benaissa. The “more” that is
required is not present on these facts. Thus, the claims in negligence in this
case must fail and would be struck if the Claim were allowed to proceed. There
is no proximity between the Plaintiffs and the Crown in the sense used in the
cases to meet the first test in Anns.
VI.
Honour of the Crown/Fiduciary Duty
[47]
The Claim alleges that by virtue of the Honour
of the Crown there is a duty owed to the Plaintiffs. The nature of this duty
as described in paragraph 38 of the Claim requires that the Crown keep the
promises that Canada has made in its Social Covenant with those “who serve this country”. The Claim goes on to state
that “[T]he Crown gave an undertaking of utmost loyalty
and responsibility to ensure that Canadian Forces members and veterans would be
provided suitable and adequate care and compensation for their service to the
county”. This claim is really an allegation that there a fiduciary duty
owed by the Crown to veterans generally. It is claimed to arise on the
authority of Scott v Canada (Attorney General), 2013 BCSC 1651.
[48]
The Honour of the Crown doctrine is one that
evolved from the aboriginal rights context. It is a principle that Crown
servants should act with honour in when representing the sovereign [see, Scott,
at para. 27; and Manitoba Métis Federation Inc. v Canada (Attorney General),
2013 SCC 14 at para 65]. In Métis, the Supreme Court described the
doctrine as follows:
The honour of the
Crown arises “from the Crown’s assertion of sovereignty over an Aboriginal
people and de facto control of land and resources that were formerly in
the control of that people”: Haida Nation, at para. 32. In
Aboriginal law, the honour of the Crown goes back to the Royal Proclamation
of 1763, which made reference to “the several Nations or Tribes of Indians with
whom We are connected, and who live under our Protection”: see Beckman
v. Little Salmon/Carmacks First Nation, 2010
SCC 53, [2010] 3 S.C.R. 103, at para.
42. This “Protection”, though, did not arise from a paternalistic desire
to protect the Aboriginal peoples; rather, it was a recognition of their
strength. Nor is the honour of the Crown a paternalistic concept.
The comments of Brian Slattery with respect to fiduciary duty resonate here:
The sources of the general fiduciary duty
do not lie, then, in a paternalistic concern to protect a “weaker” or
“primitive” people, as has sometimes been suggested, but rather in the
necessity of persuading native peoples, at a time when they still had
considerable military capacities, that their rights would be better protected
by reliance on the Crown than by self-help.
(“Understanding Aboriginal Rights” (1987), 66 Can. Bar Rev. 727, at p. 753)
[49]
In Scott, a group of veterans commenced a
proposed class action who were injured, physically or psychologically, in the
course of their service. The Court allowed the claim of Honour of the Crown
to continue. The Court stated at para. 35 as follows:
In Manitoba
Métis Federation, the Supreme Court of Canada fashioned a new
constitutional obligation derived from the Honour of the Crown albeit within
the Aboriginal context. It appears to me that this doctrine may well be
an evolving one. On the facts as pleaded, I cannot find it is plain and
obvious that the Honour of the Crown doctrine could never be extended to impose
an obligation on the Crown to fulfill the Social Covenant it made to its armed
forces despite changes in government policy. It is conceivable that the
promise to provide suitable and adequate care for the armed forces and their
families meets the threshold of an overarching reconciliation of interests that
engages the Honour of the Crown. The issue is an important one that is
deserving of full inquiry and should appropriately be left for determination
after a trial on the merits.
[50]
This is a very wide ranging though laudable
statement. In my view, however, it does not account for the Supreme Court of
Canada’s limitations on the use of this doctrine. In Scott, the
hearings judge helpfully included a summary of the four situations in which the
Honour of the Crown doctrine has been applied [see para. 29]. Each of those
situations related to the aboriginal context. No court has applied it in any
other context although in Scott the claim was allowed to proceed [the
case appears to be under appeal but no decision has yet been rendered].
[51]
The Supreme Court in the Métis case,
however, is the determinative voice on the extent and application of this
doctrine. The Supreme Court stated as quoted in para. 66 above that the
doctrine arises from the Royal Proclamation of 1763 and the “assertion of sovereignty over an Aboriginal people”. Thus,
in my view, this doctrine only applies in the aboriginal context and does not
apply to Veterans. From a policy perspective, to analogize to the second part
of the Anns test on negligence, to expand its scope would create
indeterminate liability of the Crown in an endless array of circumstances
involving disadvantaged groups or those who claim some right from the Crown. It
does not create an individual right as asserted in the Claim.
[52]
Honour of the Crown is therefore not a doctrine
that can be asserted by these Plaintiffs.
A.
Fiduciary Duty
[53]
The Plaintiffs plead that the Crown owed a fiduciary
duty to the Veteran. It is unclear from a reading of the Claim how it could
possibly apply to these Plaintiffs. This Claim pleads: “[T]he Crown solemnly undertook to act in the best interests
of injured veterans upon their return from battle, and specifically including
the Veteran”.
[54]
There is jurisprudence which supports the proposition
that a fiduciary duty between the Crown and those serving in the military is
not recognized in Canadian Law [see, for example, Dumont v Canada, 2003
FCA 475 at paras. 62-73]. In Dumont, the Federal Court of Appeal
characterized the fiduciary duty claim as a tort claim [para. 73]. The claim
for a fiduciary duty in Dumont was struck. I am of the view that the
fiduciary duty alleged in this case is a disguised tort claim and is bereft of
any chance of success. As discussed below, section 9 of the Crown
Proceedings and Liability Act prohibits such a claim.
VII.
Charter
Remedies
[55]
The Plaintiffs seek various remedies under the Charter,
particularly a declaration of a breach of their rights under section 7 and
damages pursuant to section 24.
[56]
Section 7 of the Charter grants everyone
the “right to life, liberty and the security of the
person and the right not to be deprived thereof except in accordance with the
principles of fundamental justice”. The Plaintiffs baldly plead that
their section 7 rights were breached by the Crown. There are no material facts
in support of this allegation. The only support appears to be some reference
to section 39 of the Pension Act which is alleged to be “overbroad and violates the Charter”. There is
nothing in the Claim which gives life to this allegation. It is simply devoid
of any material facts.
[57]
Further, as noted in the written representations
of the Crown the Pension Act allegation deals with economic rights and
interests which are not protected by the Charter. There is ample
jurisprudence to support the proposition that a deprivation is not sufficient
to engage this section of the Charter and that these economic rights do
not create a positive obligation on the Crown [see, for example, Gosselin v
Quebec (Attorney General), 2002 SCC 3; Siemens v Manitoba (Attorney
General), 2003 SCC 3; and , Scott, supra, at para. 104]. This part
of the Claim therefore is bereft of any chance of success.
[58]
Section 24 of the Charter provides a
remedy if an action by government is found to violate a Charter right.
In the Claim the nexus between the s. 24 remedy sought, i.e. damages, and the
Plaintiffs flows from an allegation that the Pension Act is unconstitutional
as it violates the Plaintiffs’ Charter rights because errors made by the
Department are unable to be corrected. That remedy is not available to the
Plaintiffs. Justice Gonthier on behalf of the majority of the Supreme Court
asserted in Mackin v. New Brunswick (Minister of Justice, 2002 SCC 13 as
follows:
78. According
to a general rule of public law, absent conduct that is clearly wrong, in bad
faith or an abuse of power, the courts will not award damages for the harm
suffered as a result of the mere enactment or application of a law that is
subsequently declared to be unconstitutional (Welbridge Holdings Ltd. v.
Greater Winnipeg, [1971] S.C.R. 957; Central Canada Potash Co. v. Government of
Saskatchewan, [1979] 1 S.C.R. 42). In other words “[i]nvalidity of
governmental action, without more, clearly should not be a basis for liability
for harm caused by the action” (K. C. Davis, Administrative Law Treatise
(1958), vol. 3, at p. 487). In the legal sense, therefore, both public
officials and legislative bodies enjoy limited immunity against actions in
civil liability based on the fact that a legislative instrument is invalid.
With respect to the possibility that a legislative assembly will be held liable
for enacting a statute that is subsequently declared unconstitutional, R.
Dussault and L. Borgeat confirmed in their Administrative Law: A Treatise (2nd ed.
1990), vol. 5, at p. 177, that:
In our
parliamentary system of government, Parliament or a legislature of a province
cannot be held liable for anything it does in exercising its legislative
powers. The law is the source of duty, as much for citizens as for the
Administration, and while a wrong and damaging failure to respect the law may
for anyone raise a liability, it is hard to imagine that either Parliament or a
legislature can as the lawmaker be held accountable for harm caused to an
individual following the enactment of legislation. [Footnotes omitted.]
However, as I
stated in Guimond v. Quebec (Attorney General), supra, since the adoption of
the Charter, a plaintiff is no longer restricted to an action in damages based
on the general law of civil liability. In theory, a plaintiff could seek
compensatory and punitive damages by way of “appropriate and just” remedy under
s. 24(1) of the Charter. The limited immunity given to government is
specifically a means of creating a balance between the protection of
constitutional rights and the need for effective government. In other
words, this doctrine makes it possible to determine whether a remedy is
appropriate and just in the circumstances. Consequently, the reasons that
inform the general principle of public law are also relevant in a Charter
context. Thus, the government and its representatives are required to
exercise their powers in good faith and to respect the “established and
indisputable” laws that define the constitutional rights of individuals.
However, if they act in good faith and without abusing their power under
prevailing law and only subsequently are their acts found to be
unconstitutional, they will not be liable. Otherwise, the effectiveness
and efficiency of government action would be excessively constrained.
Laws must be given their full force and effect as long as they are not declared
invalid. Thus it is only in the event of conduct that is clearly wrong,
in bad faith or an abuse of power that damages may be awarded (Crown Trust Co.
v. The Queen in Right of Ontario (1986), 26 D.L.R. (4th) 41 (Ont. Div. Ct.)).
80. Thus,
it is against this backdrop that we must read the following comments made by
Lamer C.J. in Schachter, supra, at
p. 720:
An individual
remedy under s. 24(1) of the Charter will rarely be available in conjunction
with an action under s. 52 of the Constitution Act, 1982. Ordinarily,
where a provision is declared unconstitutional and immediately struck down
pursuant to
s. 52, that will be the end of the matter. No retroactive s. 24 remedy will be
available. [Emphasis added.]
81. In
short, although it cannot be asserted that damages may never be obtained
following a declaration of unconstitutionality, it is true that, as a rule, an
action for damages brought under s. 24(1) of the Charter cannot be
combined with an action for a declaration of invalidity based on s. 52 of the Constitution
Act, 1982.
[59]
This statement of the law undermines the
assertions of the Plaintiffs as no damages can be awarded arising from an unconstitutional
statute.
[60]
However, the Plaintiffs rely on Arial v
Canada (Attorney General), 2011 FC 848 in support of their Charter
claims. In Arial, the widow of a veteran sought judicial review of a
decision of the Veterans Review and Appeal Board of Canada which denied an
application for reconsideration regarding retroactive entitlement to a pension
for a health issue. It was not a claim for a Charter remedy or a claim
for damages for negligence or misfeasance. It was a judicial review of a
decision of a tribunal which judicial review was allowed by the Court. The
matter was sent back for re-determination. In his decision, the Honourable Mr.
Justice Michel Shore made several observations regarding the errors in fact and
law made by the tribunal and the need to recognize in the pension scheme the
role played by Veterans and the purposes of providing pensions to Veterans and
their spouses. No one can take issue with the pronouncements of Justice Shore
in his descriptions of “human dignity” as it
relates to Veterans and their treatment by the tribunal [see, particularly,
paras. 68 – 76]. However, the case does not stand for the proposition that
veterans have an entitlement to pursue claims through alleged Charter
abuses or otherwise. It does stand for the proposition that the Veterans
Review and Appeal Board is required to consider the human dignity factor as
part of its deliberations and follow the spirit of the law not just the letter
of the law [para. 73].
[61]
Thus, in light of the jurisprudence from the
Supreme Court of Canada, the s. 24 Claim has no chance of success given the
facts and claims as pleaded.
[62]
Even if the allegations relating to negligence, misfeasance,
fiduciary duty/honour of the Crown and Charter breaches had a glimmer of
hope and allowed to proceed, in my view, there is another insurmountable hurdle
for this case. This hurdle is found in statute.
VIII.
Crown Liability and Proceedings Act
[63]
The Crown argues that the Claim is, in any
event, barred by operation of law and relies upon sections 8 and 9 of the Crown
Liability and Proceedings Act, RSC 1970, c C-38. Those sections provide
as follows:
Saving in
respect of prerogative and statutory powers
8. Nothing in sections 3 to 7 makes the Crown liable in respect of
anything done or omitted in the exercise of any power or authority that, if
those sections had not been passed, would have been exercisable by virtue of
the prerogative of the Crown, or any power or authority conferred on the Crown
by any statute, and, in particular, but without restricting the generality of
the foregoing, nothing in those sections makes the Crown liable in respect of
anything done or omitted in the exercise of any power or authority exercisable
by the Crown, whether in time of peace or of war, for the purpose of the
defence of Canada or of training, or maintaining the efficiency of, the
Canadian Forces. R.S., c. C-38, s. 3.
Special
Provisions respecting Liability
No proceedings
lie where pension payable
9. No proceedings lie against the Crown or a servant of the Crown in
respect of a claim if a pension or compensation has been paid or is payable out
of the Consolidated Revenue Fund or out of any funds administered by an agency
of the Crown in respect of the death, injury, damage or loss in respect of
which the claim is made. R.S., 1985, c. C-50, s. 9; 2001, c. 4, s. 39(F).
[64]
This Claim, at its heart, is about an injury
sustained by the Veteran in the fulfillment of his duties as a member of the Armed
Forces. The injuries were suffered during a training exercise and all that
flowed from that event informs the Claim. The applications for a pension, the
appeals, the tribunal hearings all stem from that one incident. There are no
independent claims. They are all derivative.
[65]
Thus, section 8 on its face and giving it its plain
and ordinary meaning, provides immunity to the Crown. Notably, the section
specifically includes the phrase “whether in peace or
of war, for the purpose of the defence of Canada or of training, or maintaining
the efficiency of, the Canadian Forces” [emphasis added]. These words
in their ordinary meaning capture the circumstances of this case and the Claim
is barred as against the Crown.
[66]
As for section 9, if my reading of section 8 is
incorrect, then section 9 provides a bar to the Claim. This case is in respect
of conduct which it is alleged prevented a proper pension being paid to the
veteran and his spouse. In the words of the section, it is an action respecting
a “pension or compensation” which “has been paid or is payable out of the Consolidated Revenue
Fund or out of any funds administered by an agency of
the Crown” for, inter alia, injury. The DVA determines the
payment of pensions. One was granted although there were issues surrounding
the correct amount and the correct time frame. Nonetheless, one must give
effect to the words of the statute and on their face, the Claim is barred.
[67]
There is jurisprudence from the Supreme Court of
Canada which supports this interpretation. In Sarvanis v Canada, 2002 SCC 28, an inmate received serious personal injuries some of which were
permanent. As a result he received a disability pension under the Canada
Pension Plan. He sued the Crown in tort for his injuries and the Crown moved
to strike the claim. The Supreme Court of Canada allowed the claim to
proceed. Justice Iacobucci, on behalf of the Court, stated in respect of
section 9 as follows:
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.
[68]
In essence, section 9 ensures that there is no
double recovery and the section is to be given a broad reading. The Supreme
Court determined that the CPP pension was not caught by section 9 because the
pension was one to which the inmate had contributed and was not a pension
arising from the facts of the case but was contingent on a disability. Thus,
the Supreme Court concluded that disability benefits did not constitute a
pension or compensation for purposes of section 9. The section requires that
eligibility for pension or compensation arise or “be in
respect of” specific events and be the result of the fact of “death, injury, damage or loss”. In this case, the
core of the claim is a pension based on the fact of injury arising while the Veteran
was in training. Thus, section 9 applies.
[69]
Further support fore this conclusion can be
found in Sherbanowski v Canada, 2011 ONSC 177. In that case a veteran
had received a pension under the New Veterans Charter and then brought a claim
against the Crown seeking damages including claims under the Charter.
The Court struck the claim primarily on the basis of the effect of section 9.
[70]
Thus, section 9 provides another avenue of
immunity for the Crown based on the facts of this case.
IX.
Prejudice to the Crown
[71]
The Crown argued that if the Claim were allowed
to proceed the Crown would be severely prejudiced. The Crown lists a number of
factors which it argues militate against allowing the Claim to precede. These factors
include such matters as insufficient particularity; the very strong likelihood
that there are few if any witnesses who can attest to what happened at DVA; the
Plaintiffs appear to be impecunious; limitation periods have expired; and it is
not clear in what capacity the Plaintiffs assert the Claim.
[72]
In all, while some of these points are valid,
the outcome of this motion does not turn on prejudice.
X.
Collateral Attack
[73]
The Crown argues that this Claim is a collateral
attack on a decision of the tribunal such that the Claim is an abuse of
process. The decisions of the tribunal regarding the length of time for the
pension and the amount were not subjected to judicial review. That avenue of
relief was available to the Veteran but not pursued as it was in Arial,
supra. As noted, Arial resulted in the case being referred back to
the tribunal to be reconsidered in light of the reasons for decision on the
judicial review.
[74]
The rule against collateral attack protects judicial
decisions properly made within the competence of the Court or tribunal from
being overturned in other proceedings. The Supreme Court of Canada in British
Columbia (Workers’ Compensation Board) v British Columbia (Human Rights Tribunal),
2011 SCC 52 as follows:
The rule against
collateral attack similarly attempts to protect the fairness and integrity of
the justice system by preventing duplicative proceedings. It prevents a
party from using an institutional detour to attack the validity of an order by
seeking a different result from a different forum, rather than through the
designated appellate or judicial review route: see Canada (Attorney General)
v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R.
585, and Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R.
629.
[75]
Decisions of courts and tribunals are final and
binding unless overturned on appeal or otherwise varied by the court or
tribunal which made the decision. Decisions made within the jurisdiction of a
court or tribunal cannot be overturned in other proceedings. The Crown argues
that by bringing this Claim the Plaintiffs are effectively seeking to overturn
the decisions of the tribunal. Such an attack on those decisions is an abuse
of process and offends the rule against collateral attack.
[76]
The Plaintiffs argue, in essence, that the Claim
is a stand-alone action outside of the realm of the decisions of the tribunal.
The causes of action do not represent an appeal of those decisions nor do they
seek to set them aside. In my view of the Claim, however, they seek to do that
in part by obtaining compensation for periods when they argue a pension should
have been paid.
[77]
The collateral attack argument provides further
support as to why this Claim cannot proceed.
[78]
Finally, there was some argument regarding the
status or standing of these Plaintiffs and whether there was an “estate” properly established by probate or otherwise
and whether these Plaintiffs represented the estate of the Veteran and his
spouse. At the outset of the hearing an affidavit was provided to the Court
sworn by Karl Hardy which affidavit set out who the various Hardy siblings were
and what roles they played in each estate. It also set out that Karl Hardy was
authorized by all his siblings to give instructions on this matter. In all,
while there is confusion as to the status of the estates and the right of Karl
Hardy or other of his siblings to represent those estates, this motion does not
ultimately turn on that issue. As with the prejudice issue, while there is
some merit to the position that the estates are not properly represented, the
motion fails for many other more compelling reasons as described above.
XI.
Conclusion
[79]
There is no doubt the Plaintiffs, and
particularly Karl Hardy, are upset and angry over the treatment meted out to
their parents by DVA in their parents efforts to obtain a proper pension. That
upset and anger is not misplaced. However, the law as it stands does not offer
them a remedy. There were remedies available which were not pursued when they
could have been and it is now far too late.
[80]
The motion to commence the action is dismissed,
but in all of the circumstances, without costs.
[81]
I am grateful to both counsel for their useful
written representations and able arguments in this difficult case. I have
considered all of those submissions including the many authorities cited by
both sides. In particular, I am especially grateful for the participation of Margaret
Keelaghan of Calgary Legal Guidance on behalf of the Plaintiffs.
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