Lebrasseur v. Canada, 2012 FCA 252

Date: 20121003

Docket: A-389-11

Citation: 2012 FCA 252

CORAM:       BLAIS C.J.

                        STRATAS J.A.

                        MAINVILLE J.A.

BETWEEN:

TERRY LYNN LEBRASSEUR and

JOSEPH ALAIN LEBRASSEUR

Appellants

and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

Respondent

Heard at Ottawa, Ontario, on October 3, 2012.

Judgment delivered from the Bench at Ottawa, Ontario, on October 3, 2012.

REASONS FOR JUDGMENT OF THE COURT BY:                          CHIEF JUSTICE BLAIS

Date: 20121003

Docket: A-389-11

Citation: 2012 FCA 252

CORAM:       BLAIS C.J.

                        STRATAS J.A.

                        MAINVILLE J.A.

BETWEEN:

TERRY LYNN LEBRASSEUR and

JOSEPH ALAIN LEBRASSEUR

Appellants

and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Ottawa, Ontario, on October 3, 2012)

BLAIS C.J.

[1]               This is an appeal from the order of the Federal Court (per Justice Martineau): 2011 FC 1075.

[2]               The Federal Court struck out an action brought by the appellants on the ground that the claims in the action were barred by section 9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, the appellants had not exhausted all available avenues of redress under Part III of the Royal Canadian Mounted Police Act, R.S.C. c. R-10, and the action was based on facts that were the subject-matter of an earlier action that was struck: Lebrasseur v. Canada, 2006 FC 852 and 2007 FCA 330.

[3]               On the last mentioned issue – essentially an application of the well-known bar against relitigation – the Federal Court found that, in the present action, only “a limited number of new facts have been added up, put into context, or further detailed by the [appellants]” (at paragraph 29). It added (also at paragraph 29) that the allegations are essentially a continuation of the same set of facts that made up the earlier action that was struck or are totally unrelated to the losses pleaded in the statement of claim.  We are not persuaded that these findings are wrong.

[4]               There are two allegations that might be considered to be new: RCMP officers driving by the appellants’ home every three months and the service of documents without further aggravating conduct (see statement of claim, paragraphs 31, 40 and 41). These are directed to the tort of intentional infliction of nervous shock. As pleaded, they do not possess the quality of extremeness, flagrantness or outrageousness that would give rise to the tort (Prinzo v. Baycrest Centre for Geriatric Care, (2002), 60 O.R. (3d) 474 (C.A.)) and pleadings can be struck out on that basis (High Parklane Consulting Inc. v. Royal Group Technologies Limited, 2007 CanLii 410 (Ont S.C.J.)).

[5]               Our conclusions on these issues are sufficient to uphold the Federal Court’s overall conclusion that the appellants’ action should be dismissed.

[6]               As in the Federal Court, the parties raised before us wider issues relating to whether section 9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c C-50 and the grievance system under the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 constitute bars to pursuing claims in the Federal Court. Though these issues have been considered in our Court in Lebrasseur, above, and have been the subject of later decisions from other appellate jurisdictions (see notably Sulz v. Canada (Attorney General), 2006 BCCA 582, 276 D.L.R. (4^th) 391; Smith v. Canada (Attorney General), 2007 NBCA 58, 282 D.L.R. (4^th) 193; and Merrifield v. Canada (Attorney General), 2009 ONCA 127) it is not necessary for us to resolve them in this appeal. Consequently, our decision to dismiss this appeal should not be understood as an endorsement of the Federal Court judge’s reasons on these issues.

[7]               Therefore, we shall dismiss the appeal with costs.

“Pierre Blais”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                             A-389-11

Appeal from the order of Martineau J. of the Federal Court, dated September 19, 2011 (2011 FC 1075).

STYLE OF CAUSE:                                                            TERRY LYNN LEBRASSEUR and JOSEPH ALAIN LEBRASSEUR

                                                                                                and

                                                                                                HER MAJESTY THE QUEEN IN RIGHT OF CANADA

PLACE OF HEARING:                                                      Ottawa, Ontario

DATE OF HEARING:                                                        October 3, 2012

REASONS FOR JUDGMENT OF THE COURT BY:   BLAIS C.J.

                                                                                                STRATAS J.A.

                                                                                                MAINVILLE J.A.

DELIVERED FROM THE BENCH BY:                         CHIEF JUSTICE BLAIS

APPEARANCES:

SOLICITORS OF RECORD: