Date: 20071213
Docket: A-77-07
Citation: 2007 FCA 400
CORAM: RICHARD
C.J.
DÉCARY
J.A.
LÉTOURNEAU
J.A.
BETWEEN:
HER MAJESTY
THE QUEEN
Appellant
and
PATRICK
BERNATH
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1]
The issue
in this appeal is essentially whether the Chief of the Defence Staff (CDS)
constitutes a “court of competent jurisdiction” within the meaning of section
24 of the Canadian Charter of Rights and Freedoms (the Charter) for the
purpose of granting a monetary remedy to a member of the Canadian Forces who
alleges that his Charter rights have been violated.
[2]
The
respondent is a former member of the Canadian Forces.
[3]
On March
27, 1998, prior to his discharge from the Forces, the respondent submitted a
grievance under section 29 of the National Defence Act, R.S.C., 1985,
c. N-5 (the Act). The CDS allowed the grievance in part three years later, but
refused the monetary compensation claimed by the respondent. The respondent did
not seek judicial review of this decision.
[4]
Instead,
he initiated proceedings in the Federal Court in which he claims [translation]
“the sum of $4,510,000 as a remedy under section 24 of the Canadian Charter
of Rights and Freedoms for infringement of his right to security of the
person, a right conferred upon him by section 7 of the Charter.”
The actions impugned in the claim are substantially the same as those referred
to in his grievance.
[5]
The
appellant then moved to dismiss the action and strike out the proceedings
on grounds of res judicata and that the only recourse
available was judicial review of the CDS’ decision. The motion was allowed by
Prothonotary Tabib (2005 FC 1232), whose decision was subsequently set aside by
Mr. Justice Simon Noël (2007 FC 104) in the decision under appeal.
[6]
The only
issue in this appeal is the one I stated supra in paragraph 1.
[7]
Noël J.
found that “the Canadian Forces grievance resolution
process has not been designed and structured to address Charter issues or the
issue of relief” (par. 95).
[8]
It is
common ground that in labour relations cases the courts have been adopting a
non-interventionist approach for some years now with regard to administrative
tribunals specialized in this area, including arbitrators (see Vaughan v.
Canada, [2005] 1 S.C.R. 146, par. 13).
[9]
It is also
common ground, since Vaughan, that this non-interventionist approach can
be followed even if the law in question, as in this case, does not provide for
the presence of an independent decision-maker—which does not mean that the
absence of such a decision-maker is not an element that can be taken into
consideration.
[10]
Finally,
it is common ground that, regardless of the applicable area of law, a tribunal
can be “competent” for the purpose of granting a remedy claimed under Charter
section 24 even if the enabling legislation does not explicitly grant it that
power and even if the remedy claimed is not the “type” of remedy provided by
the enabling legislation (see R. v. 974649 Ontario Inc., [2001]
3 S.C.R. 575, par. 28 to 34). According to this last cited judgment, the
approach to be followed to determine the power of a tribunal to grant the
remedy claimed consists in examining the function and the structure of the
tribunal in question:
The paramount
question remains whether the court or tribunal, by virtue of its function and
structure, is an appropriate forum for ordering the Charter remedy in
issue.
[Para. 35.]
[11]
It is this
functional and structural analysis that Noël J. undertook in his reasons, and
counsel for the appellant was unable to point to any decisive error committed
by the judge, either in the course of his analysis or in the conclusion he
drew.
[12]
I will
merely add a few observations. It is true, as stated by counsel, that
subsection 29(1) of the National Defence Act is expressed in
particularly encompassing terms:
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29. (1) An officer
or non-commissioned member who has been aggrieved by any decision, act or
omission in the administration of the affairs of the Canadian Forces for
which no other process for redress is provided under this Act is entitled to submit
a grievance.
|
29. (1)
Tout officier ou militaire du rang qui s’estime lésé par une décision, un
acte ou une omission dans les affaires des Forces canadiennes a le droit de
déposer un grief dans le cas où aucun autre recours de réparation ne lui est
ouvert sous le régime de la présente loi.
|
[13]
The
Federal Court has affirmed the scope of this grievance mechanism in several
cases (see Jones v. Canada et al (1994), 87 F.T.R. 190; Pilon v.
Canada (1996), 119 F.T.R. 269).
[14]
It is not
a question here of deciding whether the CDS has jurisdiction to apply the Charter
in examining grievances submitted to him (see Nova Scotia (W.C.B.) v.
Martin, [2003] 2 S.C.R. 504). The question, rather, is whether the CDS has the
power to grant a remedy under the Charter.
[15]
Until the
decision being appealed, the Court had never analyzed this question in depth.
In Pilon, for example, Wetston J., at par. 10, seems to have dealt
separately with the part of the statement of claim dealing with the Charter
section 15 remedy. In Dumont v. Canada, [2004] 3 F.C.R. 338,
our Court struck a statement of claim “except for that part of the actions that
is based on […] the Charter” (par. 82).
[16]
Here, the
CDS acknowledged, in his memorandum filed with Noël J., that he [translation]
“lacks the authority to award monetary relief in the form of damages in a
grievance proceeding under section 29” (reasons of Noël J., par. 55).
[17]
At page 15
of the Annual Report of the Canadian Forces Grievance Board (2006), it is
stated that:
An
issue that has been identified previously but remains a recurring problem
within the current grievance system is that neither the Initial Authority nor
the CDS (the Final Authority), have claims adjudication authority. The authority
to settle claims against the Crown or to give ex gratia payments to members of
the CF has been delegated to the Director Claims and Civil Litigation (DCCL) …
[18]
In the
report he submitted to the Minister of National Defence on September 3, 2003,
the Right Honourable Antonio Lamer made the following recommendation:
(81) I
recommend that the Chief of Defence Staff be given the necessary financial
authority to settle financial claims in grievances and that the Chief of
Defence Staff be entitled to delegate this authority.
[First
independent review of the provisions and the application of Bill C-25, An
Act to Amend the National Defence Act and to Make Consequential Amendments to
other Acts, in accordance with Section 96 of the Statutes of Canada (1998),
c. 35, at p. 108.]
[19]
To date,
this recommendation has not been carried out.
[20]
Moreover,
as noted by Noël J., article 7.16 of the Queen’s Regulations and Orders for
the Canadian Forces expressly provides at paragraph (1) that:
7.16
- SUSPENSION OF GRIEVANCE
(1) An
initial or final authority in receipt of a grievance submitted by a member
shall suspend any action in respect of the grievance if the grievor initiates
an action, claim or complaint under an Act of Parliament, other than the National
Defence Act, in respect of the matter giving rise to the grievance.
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7.16
– SUSPENSION DE GRIEF
(1) Une autorité initiale ou de dernière instance saisie du
grief d'un militaire est tenue de suspendre toute mesure prise à l'égard du
grief si ce dernier prend un recours, présente une réclamation ou une plainte
en vertu d'une loi fédérale, autre que la Loi sur la défense nationale,
relativement à la question qui a donné naissance au grief.
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[21]
This
provision, according to counsel for the appellant, is not to be found in any
other Canadian legislation or regulation. It constitutes a significant
indication of the possibility of initiating in other forums proceedings related
to “the matter giving rise to the grievance.”
[22]
Certainly,
access to a “one-stop service” (if I may use this expression associated with
the dispensing of medical services) standing as the established authority to
settle all matters relating to the exercise of employment would simplify the
process here and elsewhere and eliminate the duplication of proceedings. But
when the established authority—the Chief of the Defence Staff in this case—
itself acknowledges that it does not have the power to award a monetary remedy,
it is not for this Court to fill the void left intentionally by the legislator.
[23]
Therefore,
the judge was correct in refusing to strike the statement of claim.
[24]
That being
said, the respondent should understand that this is but a procedural and
preliminary victory. He will eventually have to identify precisely the
principle of fundamental justice, if any, on which his position is based. The
judgment of this Court in Prentice v. Canada, 2005 FCA 395, clearly
demonstrates that it is not an easy task.
[25]
For these
reasons, I would dismiss the appeal. Since the respondent was self-represented,
he is entitled to reimbursement only for reasonably incurred expenses.
“Robert
Décary”
I
concur.
J.
Richard, C.J.
I
concur.
Gilles Létourneau, J.A.
Translation certified
true
Stefan Winfield, reviser
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