Date:
20100111
Docket:
A-588-08
Citation:
2010 FCA 6
CORAM: LÉTOURNEAU
J.A.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
ANTHONY
MOODIE
Appellant
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA AS REPRESENTED BY THE MINISTER OF NATIONAL DEFENCE
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on January 11, 2010)
LÉTOURNEAU
J.A.
[1]
This
appeal is from a decision of Mosley J. (judge) of the Federal Court whereby he
dismissed the appellant’s appeal from a decision of Prothonotary Milczynski. In
her decision, the prothonotary struck the appellant’s Amended Statement of
Claim and dismissed with costs his action for damages.
[2]
The
appellant erroneously submits that the issue on this appeal is whether, as a
plaintiff, he can sue the Federal Crown for damages as a result of
administrative action or whether he must first proceed by way of judicial
review in the Federal Court: see paragraph 3 of his memorandum of fact and law.
[3]
We
say erroneously because the judge dismissed the appeal on the basis that the
appellant failed to exhaust the adequate administrative remedies available to
him under the Canadian Armed Forces statutory grievance procedure (see
paragraphs 26 to 30 of the reasons for judgment) and, therefore, that his
action was premature: ibidem, at paragraphs 37 to 41.
[4]
In
addition, the judge found that the appellant’s action “is a disguised grievance
and discrimination complaint”: ibidem, at paragraph 41.
[5]
We
see no error in the judge’s finding that the primary remedy sought by the
appellant is a declaration that he has been wrongfully released from office and
an order restoring him to office in the Canadian Armed Forces: ibidem,
at paragraph 38. We agree with the judge that this “is clearly a form of
redress that he could obtain through the grievance process”: ibidem.
[6]
There
was ample and cogent evidence to support the judge’s finding that the
appellant’s action is a disguised grievance and discrimination complaint and,
consequently, an attempt to circumvent the grievance process. As the judge found,
the true substance of the appellant’s claim is not the alleged Charter
breaches, but rather the alleged incidents which arose directly out of the
appellant’s employment with the Canadian Armed Forces: ibidem, at
paragraph 30.
[7]
In
our view, the judge properly applied the law when he looked to the true nature
of the dispute rather than to the appellant’s own characterization of the alleged
wrong. Addressing a similar issue, the Supreme Court of Canada in Canada (House of
Commons) v. Vaid, [2005] 1 S.C.R. 667, at paragraph 93, wrote:
The fact that
the respondent Vaid claims violations of his human rights does not
automatically steer the case to the Canadian Human Rights Commission because
“one must look not to the legal characterization of the wrong, but to the facts
giving rise to the dispute”.
[8]
Our
Court applied a similar approach on a motion to strike in Roitman v. Canada,
2006 FCA 266 where at paragraph 16 our colleague Décary J.A. wrote:
A statement
of claim is not to be blindly read at its face meaning. The judge has to look
beyond the words used, the facts alleged and the remedy sought and ensure
himself that the statement of claim is not a disguised attempt to reach before
the Federal Court a result otherwise unreachable in that Court.
[9]
Décary
J.A. went on to paraphrase the Supreme Court of Canada in Vaughan v. Canada, [2005] 1
S.C.R. 146, at paragraph 11 and our Court in Prentice v. Canada (Royal
Canadian Mounted Police), 2005 FCA 395, at paragraph 24 (leave to appeal to
the Supreme Court of Canada denied, [2006] S.C.C.A. No. 26, May 19, 2006) and
said “a plaintiff is not allowed to frame his action, with a degree of
artificiality, in the tort of negligence to circumvent the application of a
statute”: ibidem; see also Donovan v. Canada (Attorney General)
(2008), 273 Nfld. & P.E.I. R. 116, at paragraph 13 (Nfld. C.A.); and Genge
v. Canada (Attorney General) (2007), 270 Nfld. & P.E.I. R. 182, at
paragraph 40 (Nfld. C.A.).
[10]
In
dismissing the appeal, the judge reasserted the possibility for the appellant
to pursue his grievances, to seek judicial review of the resulting decisions
and, if necessary, to then renew his action for damages: see paragraph 47 of
the reasons for judgment.
[11]
That
the appellant’s action is premature is also evidenced by the fact that even if
the appellant’s action were authorized to go forward, it would be impossible
for the Trial judge to assess the additional compensation that the appellant
could be entitled to receive because the compensation that he seeks is already
recoverable, at least in large part, under various federal statutes: see Prentice,
supra, at paragraphs 74 and 75.
[12]
This
appeal misstated the issue raised by the judge’s decision. However, when the
proper issue is considered, it becomes obvious that this appeal cannot succeed.
Consequently, it will be dismissed with costs.
“Gilles Létourneau”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
(APPEAL
FROM AN ORDER OF JUSTICE MOSELY, DATED NOVEMBER 6, 2008 IN DOCKET NO.
T-1248-07)
DOCKET: A-588-08
STYLE OF CAUSE: ANTHONY
MOODIE v. HER MAJESTY THE
QUEEN IN RIGHT OF CANADA AS
REPRESENTED BY THE MINISTER OF NATIONAL DEFENCE
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: JANUARY 11, 2010
REASONS FOR JUDGMENT LÉTOURNEAU J.A.
OF THE COURT BY: NOËL J.A.
TRUDEL J.A.
DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
|
Charles C. Roach
|
FOR
THE APPELLANT
|
|
Jacqueline Dais-Visca
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Roach, Schwartz & Associates
Toronto, Ontario
|
FOR THE APPELLANT
|
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
Toronto,
Ontario
|
FOR THE RESPONDENT
|
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