Date: 20120613
Docket: A-242-11
Citation: 2012 FCA 175
CORAM: SHARLOW
J.A.
PELLETIER J.A.
MAINVILLE
J.A.
BETWEEN:
MASTER WARRANT OFFICER LINDA
L. MEGGESON
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
This is an
appeal from a judgment of Pinard J. of the Federal Court (the “application
judge”) cited as 2011 FC 600 which dismissed an application for judicial review
of a decision of the Chief of the Defence Staff dated June 21, 2010 granting
partial relief following a grievance challenging the appellant’s early
repatriation to Canada subsequent to her deployment to the Sinai Peninsula in
Egypt.
[2]
The
appellant raises two grounds of appeal: (a) the application judge erred in
concluding that the relief of a potential deployment granted by the Chief of
the Defence Staff was reasonable since the appellant is, for medical reasons,
permanently unfit for such a deployment; and (b) the application judge also
erred in refusing to direct that the judicial review application be treated and
proceeded with as an action pursuant to subsection 18.4(2) of the Federal
Courts Act, R.S.C. 1985, c. F-7.
[3]
For the
reasons set out below, I do not accept the appellant’s arguments on the first
ground of appeal, but I would grant the appeal on the second ground and would
thus direct, subject to conditions, that the application be treated and
proceeded with as an action.
The grievance dispute
[4]
The
appellant has been a member of the Canadian Forces since 1977. In July 2006,
she began serving as Master Warrant Officer on a one-year tour of duty as the
Vehicle Fleet Management Coordinator of the Multinational Force and Observers
in Egypt, and was assigned secondary
duties as the Contingent Sergeant Major.
[5]
In early
October 2006, a few months following her deployment to Egypt, the appellant was
unilaterally repatriated to Canada. She submitted a grievance
through her chain of command pursuant to section 29 of the National Defence
Act, R.S.C. 1985, c. N-5. The grievance was forwarded to the Canadian
Forces Grievance Board, which issued its findings and recommendations in
December 2009.
[6]
The Chief
of the Defence Staff, acting as the final authority in the grievance process
pursuant to section 29.11 of the National Defence Act, followed, by and
large, the recommendations of that Board. He concluded that procedural fairness
had been disregarded in the process leading to the appellant’s repatriation to Canada, and that the officer who
ordered her unilateral repatriation did so without proper authority.
[7]
Though the
appellant had requested, inter alia, financial compensation for the loss
of the benefits she would have obtained during the remaining months of her deployment
to Egypt, the Chief of the Defence Staff ruled that he had no authority in the grievance
process to award any form of financial compensation for services that were not
rendered to the Canadian Forces, including ex gratia payments. He
informed the appellant that any requests for financial compensation should be
submitted to the Director Claims and Civil Litigation of the Department of
National Defence as claims against the Crown.
[8]
The Chief
of the Defence Staff did, however, grant some relief to the appellant. He
directed that a personnel report be removed from her file, that certain expenses
related to her relocation be reimbursed, and that she be considered for a posting
if another operational deployment opportunity appropriate to her qualifications
and experience arose.
The Federal Court judgment
[9]
The
appellant challenged this decision before the Federal Court by way of a
judicial review application. She represented herself throughout the Federal
Court proceedings. The appellant submitted that the relief granted by the Chief
of the Defence Staff was inadequate and unreasonable. She raised two principal
arguments in support of that submission.
[10]
First, she
argued that considering her for another deployment was an unenforceable form of
relief. Following her return from Egypt,
the appellant had been found to have temporary medical restrictions which
precluded her from another deployment. These temporary restrictions
subsequently became permanent medical restrictions at some time prior to the
final decision on her grievance. The appellant thus submitted that the offer of
another potential deployment was unreasonable in the light of both her
disqualification from deployment for medical reasons and the refusal of the
Canadian Forces to provide her with a medical waiver.
[11]
Second,
she argued that her monetary compensation claims should have been directly
forwarded by the Chief of the Defence Staff to the Director Claims and Civil
Litigation of the Department of National Defence with a recommendation that
they be favourably looked upon and granted.
[12]
The
appellant consequently requested that the Federal Court issue various orders
ensuring that she be deployed to her former position in Egypt or, in the alternative, that she be paid
the allowances and benefits she was deprived of as a result of her premature
repatriation from Egypt. She also sought, as an
alternative remedy, an order directing that the application for judicial review
be continued as an action for damages.
[13]
Applying a
standard of reasonableness to the grievance decision, the application judge
ruled that the Chief of the Defence Staff was not bound to take into account
the fact that the appellant was medically unfit for deployment. The application
judge found that such information was not before the Chief of the Defence Staff
when he determined the appropriate relief. The application judge also found
that the appellant had been given an opportunity to submit this information to
the grievance authorities prior to the final decision on her grievance, but
that she had failed to avail herself of this opportunity. He consequently
concluded that (a) there was nothing to indicate that the relief granted was
unreasonable in the circumstances of the case , and (b) there was no legal
basis upon which the Federal Court could order her redeployment in spite of her
medical condition.
[14]
The
application judge also ruled that the Chief of the Defence Staff had correctly
determined that he had no authority to grant the monetary compensation sought
by the appellant through the grievance process. The application judge further
refused to either (a) order the Chief of the Defence Staff to forward the
monetary claims to the Director Claims and Civil Litigation of the Department
of National Defence with a favourable recommendation, or (b) direct that the
application for judicial review be treated and proceeded with as an action for
damages. The basis for these refusals were set out as follows at paragraph 24
of the application judge’s reasons:
First, it
is incumbent upon the applicant herself, not the [Chief of the Defence Staff],
to submit a substantiated claim, as was suggested in the decision, to [the
Director Claims and Civil Litigation]. Second, absent extraordinary
circumstances, it is too late for this Court, at the hearing of the application
for judicial review, to allow the request that the application be treated and
proceeded with as an action pursuant to subsection 18.4(2) of the Federal
Courts Act. Such a request should and could have been made at a much
earlier stage of the application for judicial review.
Was the
relief granted reasonable?
[15]
The first
ground of appeal challenges the reasonableness of the relief granted by the
Chief of the Defence Staff. The appellant argues that the application judge
erred in concluding that there was no evidence on the record suggesting that
she was unfit for future deployment. Consequently, taking into account the
available medical evidence, a potential deployment was an unreasonable form of
relief.
[16]
It is not
disputed that the Canadian Forces Grievance Board was aware that the appellant
was classified for geographical and occupational medical purposes with
temporary medical limitations. These limitations were however subsequently
found to be permanent. It is however disputed whether that Board knew or should
have known that the appellant was subsequently found to have permanent medical
limitations that would disqualify her from operational deployment.
[17]
The
appellant notes that the Canadian Forces Grievance Board sought and obtained
from her a written consent allowing it access to her personnel and medical
records. She concludes from this that the Board, when recommending a potential
deployment, was not in a position to ignore the medical information confirming
that she had been found permanently unfit for an operational deployment.
[18]
I do not
accept the appellant’s arguments on this ground of appeal.
[19]
First, the
fact that the grievance authorities were aware that the appellant was subject
to temporary limitations does not render unreasonable the relief granted to
her. Temporary limitations are meant to last only for a limited time, and a
possible deployment was thus a potentially effective remedy. In these
circumstances, such a remedy falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law.
[20]
Second,
though the Canadian Forces Grievance Board could have carried out a more
thorough and updated analysis of the appellant’s medical classification prior
to issuing its relief recommendation, the fact remains that the appellant had
an opportunity to correct any perceived deficiency in the recommended remedy
based on her medical classification, and failed to avail herself of this
opportunity.
[21]
The
Canadian Forces Grievance Board issued to the appellant its findings and
recommendations on December 1, 2009. In its covering letter, it notified the
appellant that she could provide comments and pertinent documents which would
be submitted to and considered by the Chief of the Defence Staff prior to his
final decision on the grievance:
After reviewing the [findings and
recommendations], you may wish to provide comments and/or other pertinent
documents to [the Director General Canadian Forces Grievance Authority] for
consideration by the [final authority]. If so, it is requested that you
indicate your intentions using the enclosed form which, you must complete, sign
and forward to [the Director General Canadian Forces Grievance Authority]
within 21 calendar days from receipt of this letter…
(Appeal Book at p. 667)
[22]
The
appellant did provide additional comments to the Director General Canadian Forces
Grievance Authority on January 9, 2010, none of which pertained to the effect
of her permanent medical restrictions on the proposed potential operational
deployment opportunity. Though the appellant had, by that date, been assigned
permanent medical limitations that would disqualify her from operational
deployment, she did not mention this fact, nor did she question the proposed
deployment opportunity on this basis. The appellant made comments regarding her
health only when discussing her monetary compensation claims, cryptically
noting that the Board’s report “seems to have missed addressing the negative
effect on my health and well being sent to the board and is included in my
file” (Appeal Book at p. 694).
[23]
This
contrasts with the appellant’s clear comments to the Canadian Forces Grievance
Authority shortly after the release of the final decision of the Chief of the
Defence Staff. Indeed, in an email dated August 11, 2011 the appellant raised
for the first time the impacts of her medical limitations on deployment
opportunities:
The CDS [Chief of the Defence Staff]
directed that I be considered for a tasking if another operational deployment
opportunity appropriate to my qualifications and experience arises. Please also
note that there are no further conditions attached to the CDS’s offer.
Therefore I presume from reading the CDS’s decision that waivers will be
provided in all areas required including medical fitness in order for the CDS’s
direction to be implemented. I therefore seek your confirmation that the CDS’s
direction will be implemented in this fashion.
I have approached the Career Manager to
see what tours would be suggested. Presently, I am on a Medical Category which
would preclude me from DAG Green for Operational deployment. I would consider
any operational deployment that the CM may suggest with my preference to return
to my former position in Egypt, OP CALUMET if my Medical
status is not an issue or would be waived.
(Appeal Book at pp. 300-301)
[24]
Had the
appellant made these comments in a timely manner prior to the final decision on
her grievance, she might have pursued her arguments concerning the
unreasonableness of the remedy which was granted to her. However, she chose to
raise her medical limitations only after the final decision had been
issued, and for the purpose of obtaining an ex post facto waiver of
these limitations.
[25]
In the
circumstances of this case, and taking into account the appellant’s failure to
raise her medical limitations in a timely fashion, I can find no reviewable error
in the application judge’s ruling that the relief granted was reasonable.
Did
the application judge err in refusing to direct that the application be treated
and proceeded with as an action?
[26]
Subsection
18.4(2) of the Federal Courts Act reads as follows:
|
18.4 (2) The Federal Court may, if it considers it appropriate,
direct that an application for judicial review be treated and proceeded with
as an action.
|
18.4 (2) Elle peut, si elle l’estime indiqué, ordonner qu’une
demande de contrôle judiciaire soit instruite comme s’il s’agissait d’une
action.
|
[27]
The
applicant sought, inter alia, the following relief in her notice of
application for judicial review in the Federal Court:
The Applicant makes an application for:
…
(b) An order directing the [Chief of the
Defence Staff] to unconditionally reinstate the Applicant to her former
position.
(c) In the alternative, an order that the
[Chief of the Defence Staff] forward the Applicant’s file to the Director
Claims and Civil Litigation (DCCL) along with his recommendation that the
Applicant be paid all the allowances and benefits she was deprived from
receiving as of the date of her unauthorized removal from her duties until she
would have completed her one year tour.
…
(e) In the alternative, an order
permitting this application for judicial review to be continued as an action
for damages.
(Appeal Book at pp. 19-20),
emphasis added)
[28]
The
appellant was thus seeking to protect her claim for damages resulting from her
unilateral repatriation to Canada in the event the application
judge concluded that she could not obtain lost allowances and benefits through
the grievance process. In other words, if the Federal Court concluded that the Chief
of the Defence Staff had correctly declined jurisdiction to award her the lost allowances
and benefits she claimed through the grievance process, then she was seeking an
opportunity to pursue her monetary claims before the Federal Court by asking
that her application be treated as an action.
[29]
The
application judge declined to direct that the judicial review application be
treated as an action. This discretionary decision may be reviewed on appeal
only insofar as the application judge has misdirected himself as to the
applicable law (for instance, if he has followed a wrong principle, has failed
to take into consideration relevant factors or, conversely, has taken into
consideration inappropriate factors), or has made a palpable error in his
assessment of the facts: British Columbia (Minister of Forests) v. Okanagan
Indian Band, [2003] 3 S.C.R. 371, 2003 SCC 71 at para. 43, referring
approvingly to Pelech v. Pelech, [1987] 1 S.C.R. 801, at pp. 814-815.
[30]
The issue
is important for the parties, since they both agree that should the appellant
initiate now a new action seeking monetary compensation, a controversy would
arise as to whether such an action was precluded by time limitations.
[31]
The
Federal Court may direct that a judicial review application be treated and
proceeded with as an action in order to avoid the procedural restrictions and
constraints resulting from the summary and expeditious nature of a judicial
review proceeding: Association des crabiers acadiens Inc. v. Canada (Attorney General), 2009 FCA 357, 402 N.R. 123
(“Association des crabiers acadiens”) at para. 38. For example, it is
possible to treat a judicial review application as an action when the
application does not provide appropriate procedural safeguards where
declaratory relief is sought: Haig v. Canada, [1992] 3 F.C 611 (C.A.) at
p. 618, aff’d on other grounds [1993] 2 S.C.R. 995; or when the facts
underlying the application cannot be properly determined through affidavit
evidence: Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464
(C.A.) at pp. 470-471.
[32]
Subsection
18.4(2) of the Federal Courts Act places no limits on the considerations
which may be taken into account in deciding whether or not to direct that a
judicial review application be treated and proceeded with as an action: Drapeau
v. Canada (Minister of National Defence) (1995), 179 N.R. 398 (F.C.A.) at
para. 1 (“Drapeau”); Hinton v. Canada (Minister of Citizenship and
Immigration),
2008 FCA 215, [2009] 1 F.C.R. 476 (“Hinton”) at para. 44. Thus, the desirability to facilitate
access to justice and to avoid unnecessary costs and delays may be taken into
account: Drapeau at para. 1; Association des crabiers acadiens at
para. 39.
[33]
This Court
has accordingly decided that an application for judicial review may be treated
as an action where it is necessary to alleviate the inadequacies of the relief
available on judicial review. Hence, our Court has found that while damages
cannot normally be awarded on an application for judicial review, once the
application is treated as an action, monetary remedies can nevertheless be
awarded within that proceeding: Hinton at paras. 45 to 50; Shubenacadie
Indian Band v. Canada (Attorney General) et al. 2001 FCT 181, 202 F.T.R. 30
(T.D.) at para. 4, aff’d [2002] FCA 255.
[34]
As noted by Binnie J.
in Canada (Attorney General)) v.
Telezone Inc.,
[2010] 3 S.C.R. 585 (“Telezone”) at para. 52, the remedies
available on an application for judicial review pursuant to the Federal
Courts Act are traditional administrative law remedies and declaratory and
injunctive relief in the administrative law context, and these remedies do not
include an award of damages. Moreover, the plaintiff in a damages action is not
entitled to add a supplementary claim for a declaration or injunction to
prevent the government from acting on a decision said to be tainted by
illegality, since subsection 18(3) of the Federal Courts Act specifically
provides hat the administrative law remedies set out in subsection 18(1) of
that act “may be obtained only on an application for judicial review made under
section 18.1”.
[35]
Since the
administrative law remedies of paragraph 18(1)(a) of the Federal
Courts Act are under the exclusive jurisdiction of the Federal Court, were
it not for subsection 18.4(2), litigants would be obliged to institute two
distinct proceedings when seeking both administrative law remedies and monetary
remedies against the Crown. The important, useful and practical effect of
subsection 18.4(2) of the Federal Courts Act is thus to allow
administrative law remedies and monetary remedies to be pursued simultaneously
against the Crown in the same proceeding before the Federal Court.
[36]
Much of
the past jurisprudence concerning subsection 18.4(2) was developed in the
shadow of this Court’s decision in Canada v. Grenier, 2005 FCA 348,
[2006] 2 F.C.R. 287, which held that in order to protect from erosion the Federal
Court’s exclusive jurisdiction over judicial review of federal boards,
commissions and tribunals, an action for damages against the Crown could not
proceed until the decision of the federal authority supporting the claim had
been set aside through judicial review proceedings under the Federal Courts
Act: see Hinton and Association des crabiers acadiens.
[37]
Now that
the Grenier principle has been overruled by the Supreme Court of Canada
in a series of recent decisions (see Telezone; and Canada (Attorney General)
v. McArthur, [2010] 3 S.C.R. 626, Parrish & Heimbecker Ltd. v.
Canada (Agriculture and Agri-Food), [2010] 3 S.C.R. 639; Nu-Pharm Inc.
v. Canada (Attorney General), [2010] 3 S.C.R. 648; Canadian Food
Inspection Agency v. Professional Institute of the Public Service of Canada,
[2010] 3 S.C.R. 657; Manuge v. Canada, [2010] 3 S.C.R. 672), a broad
approach to the treatment of applications as actions pursuant to subsection
18.4(2) of the Federal Courts Act is appropriate in order to promote and
facilitate access to justice and avoid unnecessary costs, delays and
uncertainties for the litigants who are seeking various types of relief against
the federal Crown.
[38]
As noted
by Binnie J. in Telezone at paragraph 32, “[t]he enactment of the Federal
Court Act, S.C. 1970-71-72, c. 1, and the subsequent amendments in 1990
were designed to enhance government accountability as well as to promote access
to justice. The legislation should be interpreted in such a way as to promote
those objectives.” A broad interpretation of subsection 18.4(2) of the Federal
Courts Act promotes those objectives.
[39]
In this case, the
appellant was seeking both administrative law remedies which would have allowed
her to obtain the monetary relief she sought through the grievance process
available to her under the National Defence Act, and, in the alternative, she sought a monetary award of
damages in the event her administrative law arguments did not succeed. Faced
with such requests, the application judge decided to hear and adjudicate the merits
of the administrative law issues, while simultaneously discarding the request
to pursue the proceedings as an action. In the particular context of this case,
the application
judge erred in proceeding as he did.
[40]
The proper course in
such circumstances was to adjourn the hearing of the judicial review
application and to direct the appellant to submit within a specified timeframe
a motion requesting that the application be treated and proceeded with as an
action, failing which her monetary claims would be deemed abandoned within the
framework of the application.
[41]
Since the application
judge has now decided the administrative law issues raised by the application,
a special and unusual appellate remedy will be required in order to provide the
appellant with an opportunity to pursue at this late stage her monetary claims
against the Crown within the framework of her application for judicial review.
Conclusions
[42]
I would therefore
allow the appeal, set aside the judgment of the Federal Court, and replace it
with a judgment that reads as follows:
i.
The
application for an order setting aside or varying the decision of the Chief of
the Defence Staff dated June 21, 2010 is dismissed.
ii.
The
request for a direction that the application be treated and proceeded with as
an action pursuant to
subsection 18.4(2) of the Federal Courts Act is allowed in
relation to the applicant’s claim for lost allowances and benefits resulting from
her early unilateral repatriation from Egypt, or for damages in lieu thereof.
iii.
The
procedure for the hearing of the monetary claim will be determined by the
Federal Court.
iv.
The matter
of costs in the Federal Court is deferred until the final disposition of the
application.
[43]
In the light of the
mixed result, there should be no order as to costs in this appeal.
[44]
As a closing comment,
nothing in these reasons should be construed as sustaining the validity of the
appellant’s claims to any form of monetary compensation resulting from her unilateral repatriation from Egypt.
"Robert
M. Mainville"
“I
agree.
K.
Sharlow J.A.”
“I
agree.
J.D.
Denis Pelletier J.A.”
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