Docket: T-1342-15
Citation:
2015 FC 1286
Montréal, Quebec, November 18, 2015
PRESENT: The Honourable Madam Justice St-Louis
BETWEEN:
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LOREN MURRAY
PEARSON
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Applicant
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and
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CANADA (ATTORNEY GENERAL)
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This is a motion brought by the AGC to strike
Mr. Pearson’s Application for judicial review. Mr. Pearson brought an Application
for judicial review pursuant to section 18.1 of the Federal Courts Act,
RSC 1985, c F-7 [the Act] with respect to a letter from the Department of
National Defence and Canadian Forces Legal Advisor [DND/CF Legal Advisor] dated
July 9, 2015 wherein counsel concluded there was no liability on the part of
the Crown and that no compensation could be offered to Mr. Pearson in payment
of arrears for salary and benefits.
II.
Context
[2]
On October 26, 2012, Mr. Pearson was released
and ceased his military service. On May 23, 2013 the Governor in Council
approved the Regular Forces officers releases made during the period from
September 1, 2012 to December 31, 2012, and thus approved Mr. Pearson’s
release.
[3]
On January 27, 2015, Mr. Pearson sent a letter to
the DND/CF Legal Advisor claiming the amount of $70,000 in compensation as
salary for the period from October 26, 2012 to May 23, 2013, thereby increasing
his pension and retirement benefits, and he also claimed the applicable
interest and legal costs. Mr. Pearson based his claim on article 15.03 of the Queen’s
Regulations and Orders for the Canadian Forces [QR&O].
[4]
The DND/CF Legal Advisor is an office of the
Department of National Defence which provides objective legal advice to the Department
of National Defence and Canadian Armed Forces (Government of Canada, “National Defence and Canadian Forces Legal Advisor”
(November 13 2015), online: <http://www.forces.gc.ca/en/about-org-structure/dnd-cf-legal-advisor.page>).
[5]
On July 9, 2015, the DND/CF Legal Advisor sent a
letter to Mr. Pearson, through his counsel, informing him that no compensation
could be offered as there was no liability on the part of the Crown. The
conclusion was based on article 208.31 of the QR&O.
[6]
On August 13, 2015, Mr. Pearson filed an Application
for judicial review of said letter before this Court.
[7]
On October 14, 2015, the AGC brought a motion
under Rule 221 of the Federal Courts Rules, SOR/98-106 [the Rules] to
strike Mr. Pearson’s Application for judicial review.
III.
Issues
[8]
The Court must decide if the AGC has met its
burden to strike Mr. Pearson’s application.
IV.
Submissions of the Parties
A.
The AGC’s Submissions
[9]
In essence, the AGC submits that the Federal
Court does not have jurisdiction to hear Mr. Pearson’s Application for judicial
review since the decision he wants to review is not a final decision made by a
federal board, commission or other tribunal.
(1)
Test for a Motion to Strike
[10]
The AGC submits that on a motion to strike, the
test is whether it is plain and obvious and beyond doubt that the claim cannot
be sustained in its current form (Hunt v Carey Canada Inc., [1990] 2 SCR
959 at p 980 [Hunt]). Thus, this motion cannot succeed unless it is
“plain and obvious and beyond doubt” that the Court is without jurisdiction (Hodgson
v Ermineskin Indian Band No 942, [2000] FCJ No 313).
(2)
The DND/CF Legal Advisor’s Letter is Not a Final
Decision
[11]
The AGC submits that the Federal Court has
already found that decisions from the DND/CF Legal Advisor are not final
decisions affecting the rights of the Applicant (Sandiford v Canada
(Attorney General), 2009 FC 862 at para 29) [Sandiford], and as
such, would thus not be subject to judicial review.
[12]
The AGC submits that case law has established
that the presence of an authority directly contrary to the position on which an
application is based warrants granting a motion to strike and that the position
of the Court in Sandiford is such an authority.
(3)
The DND/CF Legal Advisor is not a Federal Board,
Commission or Other Tribunal
[13]
The AGC submits that section 18.1 of the Act
provides that an application for judicial review may be made only in respect of
decisions of a “federal board, commission or other
tribunal” [Federal Board] as defined in section 2 of the Act, and that
based on the definition in the Act and the case law, the DND/CF Legal Advisor
is not a Federal Board.
[14]
A Federal Board is defined at section 2 of the
Act as:
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Federal board, commission or other tribunal:
“federal board, commission or other tribunal” means any body,
person or persons having, exercising or purporting to exercise jurisdiction
or powers conferred by or under an Act of Parliament or by or under an order
made pursuant to a prerogative of the Crown, other than the Tax Court of
Canada or any of its judges, any such body constituted or established by or
under a law of a province or any such person or persons appointed under or in
accordance with a law of a province or under section 96 of the Constitution
Act, 1867.
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Office fédéral :
« office fédéral
» Conseil, bureau, commission ou autre organisme, ou personne ou groupe de
personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs
prévus par une loi fédérale ou par une ordonnance prise en vertu d’une
prérogative royale, à l’exclusion de la Cour canadienne de l’impôt et ses
juges, d’un organisme constitué sous le régime d’une loi provinciale ou d’une
personne ou d’un groupe de personnes nommées aux termes d’une loi provinciale
ou de l’article 96 de la Loi constitutionnelle de 1867.
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[15]
The AGC submits that a Federal Board must thus have
his power “conferred by or under an Act of Parliament
or by or under an order made pursuant to a prerogative of the Crown” and
that the Court must determine what is (a) the source of the power and (b) the
nature of the power (Anisman v Canada (Border Services Agency), 2010 FCA
52 at paras 29-30).
(a)
Source of the Power
[16]
According to the AGC, the DND/CF Legal Advisor’s
decision was rendered pursuant to the Directive on Claims and Ex Gratia
Payments [Directive on Claims] issued under the authority of section 7 of
the Financial Administration Act, RSC 1985, c F-11 and the source of its
power is thus an Act of Parliament.
(b)
Nature of the Power
[17]
The AGC acknowledges that the powers of the
DND/CF Legal Advisor are conferred by an Act of Parliament, but submits that
the nature of this power is not one of a Federal Board, nor does it relate to
administrative law.
[18]
The Directive on Claims relates to civil
litigation and defines “Claims” as follows:
Claim
Is a claim in tort or extracontractual claim
for compensation to cover losses, expenditures or damages sustained by the
Crown or a claimant. For purposes of this directive, claims also include
requests or suggestions that the Crown make an ex gratia payment. Claims
can be settled in or out of court.
[19]
The AGC contends that the alleged decision at
issue is a letter from a Department of Justice counsel informing Mr. Pearson of
the Crown’s position in relation to his claim. The powers exercised by the
DND/CF Legal Advisor in the letter are not of the nature of a Federal Board’s
powers, nor are they of a public jurisdiction or character. The rejection of
the claim for compensation is not an administrative decision that should be
reviewed by the Court.
B.
Mr. Pearson’s Submissions
(1)
Test for a Motion to Strike
[20]
Mr. Pearson cites Hunt at para 36, to
establish the test the applicant must meet for a motion to strike to succeed:
“assuming that the facts as stated in the
statement of claim can be proved, is it "plain and obvious" that the
plaintiff's statement of claim discloses no reasonable cause of action?
As in England, if there is a chance that the plaintiff might succeed, then
the plaintiff should not be "driven from the judgment seat". Neither
the length and complexity of the issues, the novelty of the cause of action,
nor the potential for the AGC to present a strong defence should prevent the
plaintiff from proceeding with his or her case. Only if the action is
certain to fail because it contains a radical defect ranking with the others
listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be
struck out.” (emphasis added by Mr. Pearson)
[21]
Thus, Mr. Pearson agrees with the AGC that the
test on a motion to strike is whether it is plain and obvious and beyond doubt
that the claim cannot be sustained in its current form.
[22]
Mr. Pearson submits also that the threshold is
high for the AGC to succeed on a motion to strike and that even in cases where
the application for a motion to strike is well founded, it is common for the
result to be only an order permitting the defective pleadings to be amended,
rather than struck.
(2)
The DND/CF Legal Advisor’s Letter is a Final Decision
[23]
Mr. Pearson submits that the letter he received
from the DND/CF Legal Advisor is a decision and represents an exhaustion of the
internal administrative law channels available to him. Mr. Pearson submits that
the decision is a conclusion after an evaluation of facts and law which
pronounced a finding and offers arguments to support it.
[24]
Mr. Pearson submits that administratively, the
DND/CF Legal Advisor letter was a binding decision by the only entity that
could affect corrections to salary, pension and other benefits.
[25]
Mr. Pearson submits that no judicial hierarchy
exists and thus he did not have to start an action in civil courts to have his
judicial review. Mr. Pearson also submits that the availability of another
judicial forum is immaterial to this Application.
[26]
Mr. Pearson points out that the AGC’s argument that
DND/CF Legal Advisor’s decisions are not subject to judicial review rests on an
obiter of this Court in Sandiford, and that Sandiford has nothing
in common with this Application. Furthermore, Mr. Pearson submits that the obiter
does not bind the court and should not be considered.
(3)
The DND/CF Legal Advisor is a Federal Board
[27]
Mr. Pearson submits that the source of the Director
of claims and civil litigation’s decision is the Treasury Board Secretariat
[TBS] compensation scheme, and as such is a Federal Board. The decision was
made by interpreting TBS’s policies. Mr. Pearson submits that the decision is
final and biding with no level of administrative review other than this Court.
(4)
Alternate Remedy
[28]
If the motion to strike is granted, Mr. Pearson
asks the Court to allow him to transform his application into an action.
V.
Analysis
A.
State of the law
(1)
Test for a Motion to Strike
[29]
The parties agree on the test for a motion to
strike basing it on the Hunt decision. The latter decision concerned
a motion to strike an action, unlike in the present case, where the
motion to strike relates to an application.
[30]
The Federal Court of Appeal restated the applicable
test in the context of a motion to strike an application for judicial review in
Apotex Inc v Canada (Governor in Council), 2007 FCA 374 at para 16:
[16] A motion to strike an application for judicial
review is a judicial tool which should be used in very
exceptional cases and should only succeed if the application for judicial
review is so clearly improper as to be bereft of any chance of success. In the
context of an action (as opposed to an application), the test for a motion to
strike, as laid out by the Supreme Court of Canada for summary judgment in Hunt
v. Carey Canada Inc. is whether it is “plain and obvious” that the
pleadings disclose no reasonable cause of action. Without commenting on the
appropriateness of applying a test for striking out an action to a motion to
strike out an application, the language used in the Hunt v. Carey test
is useful in framing the legal issues to be decided in this case.
[31]
Thus the Court must decide if Mr. Pearson’s Application
for judicial review is so clearly improper as to be bereft of any chance of
success.
(2)
Nature of the Decision under Review
[32]
The AGC submits that this Court has already
found that decisions from the DND/CF Legal Advisor are not final decisions subject
to a judicial review. The AGC bases its argument on Justice Kelen’s obiter
in Sandiford, mentioned at para 11 of the present decision.
[33]
As the Supreme Court ruled in R v Henry, 2005
3 SCR 609 at para 57, not all obiter have the same weight :“The weight
decreases as one moves from the dispositive ratio decidendi to a wider
circle of analysis which is obviously intended for guidance and which should be
accepted as authoritative.”
[34]
The Court does not feel bound by the obiter
in Sandiford as it is satisfied it is distinguishable from the present
case. In Sandiford, Justice Kelen was entertaining an action and not an
application for judicial review. Furthermore, in Sandiford, the DND/CF
Legal Advisor had declined to negotiate a settlement; in the present case, the
DND/CF Legal Advisor declined liability in respect to Mr. Pearson’s claim for
compensation and denied him the said compensation.
[35]
Thus, the Court concludes that it is not so
clearly improper as to be bereft of any chance of success that the DND/CF Legal
Advisor’s letter is not a decision.
(3)
DND/CF Legal Advisor as a Federal Board
[36]
Mr. Pearson filed an Application for judicial review
under section 18.1 of the Act which relies on the premise that the Application
challenges a decision rendered by a Federal Board. In order to determine if the
DND/CF Legal Advisor is a Federal Board, the Federal Court of Appeal
established a two-step test (Innu Nation v Pokue, 2014 FCA 271 at para
11).
[37]
The first step consists of determining what
jurisdiction or power is being exercised. The second is directed to the source
or origin of the jurisdiction or power that is being exercised.
[38]
In the present case, as per to the first step,
the power exercised here relates to the assessment of a claim against the Crown
and the further action to be taken as the result of this assessment.
[39]
As per the second step, the source of the DND/CF
Legal Advisor’s power originates from the Directive on Claims issued
under the Financial Administration Act, which is an Act of Parliament,
as submitted by the AGC.
[40]
Hence, it is not so clearly improper as to be
bereft of any chance of success that the DND/CF Legal Advisor is not a Federal
Board.
VI.
Conclusion
[41]
For all the reasons above, the respondent has
not convinced the Court that it is not so clearly improper as to be bereft of
any chance of success that Mr. Pearson’s Application for judicial review will
fail.
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