Date:
20071018
Docket: A-401-06
Citation: 2007 FCA 330
CORAM: RICHARD
C.J.
NADON
J.A.
SHARLOW
J.A.
BETWEEN:
TERRY LYNN LEBRASSEUR and
JOSEPH ALAIN LEBRASSEUR
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
This is an appeal of
the judgment of Justice Mactavish dated July 6, 2006 (2006 FC 852) allowing the
motion of the respondent (the Crown) under Rule 221(1)(a) of the Federal
Courts Rules, SOR/98-106, to strike the appellants’ statement of claim on
the basis that it discloses no reasonable cause of action.
[2]
Rule 221(1)(a) reads
as follows:
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221.
(1) On motion, the Court may, at any time, order that a pleading, or anything
contained therein, be struck out, with or without leave to amend, on the
ground that it
(a) discloses no reasonable cause of action
or defence, as the case may be,
[…]
and may order the
action be dismissed or judgment entered accordingly.
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221. (1) À tout
moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie
d’un acte de procédure, avec ou sans autorisation de le modifier, au motif,
selon le cas :
a) qu’il ne révèle aucune cause d’action ou de
défense valable;
[…]
Elle peut aussi
ordonner que l’action soit rejetée ou qu’un jugement soit enregistré en
conséquence.
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[3]
It is undisputed that
Justice Mactavish stated the correct test for the application of Rule 221(1)(a)
(see paragraph 14 of her reasons). A statement of claim cannot be struck under
Rule 221(1)(a) unless it is plain and obvious that the action cannot succeed: Hunt
v. Carey Canada Inc., [1990] 2 S.C.R. 959.
[4]
The appellant
Constable Terry Lynn
Lebrasseur is a member of
the RCMP. The appellant Joseph Alain Lebrasseur is her husband. In August of
2003, Constable Lebrasseur and Mr. Lebrasseur filed a statement of claim
seeking damages against the Crown on a number of grounds, including negligent and
intentional infliction of nervous shock, public misfeasance, bad faith and
breach of the duty of fairness, breach of fiduciary duty, and constructive
dismissal. An amended statement of claim was filed in December, 2005.
[5]
The factual basis of
Constable Lebrasseur’s claim consists of allegations of harassment and other
wrongful acts of senior RCMP officers, including her direct superiors. The
allegations begin with an unjustified reprimand in May of 2001, and include an
attempt to transfer her against her wishes, significant negative changes in her
assigned duties and working conditions, and disdainful and belittling
treatment. These events ultimately led to her taking sick leave starting in
August of 2001 because of a mental illness. Constable Lebrasseur has never
returned to her duties with the RCMP. She seeks compensation for lost economic
opportunity, lost health benefits and loss of pension income, as well as
aggravated damages. Mr. Lebrasseur asserts a derivative claim under the Family
Law Act, R.S.O. 1990, c. F.3.
[6]
In 2004, Constable
Lebrasseur applied for a disability pension under section 32 of the Royal
Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11, and
subsection 35(1) of the Pension Act, R.S.C. 1985, c. P-6, which read as
follows:
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Royal Canadian Mounted Police Superannuation Act
R.S.C. 1985, c. R-11
32. Subject to this Part, an award in accordance
with the Pension Act shall be granted to or in respect of […]
(b) any person who served in the Force at any time after
March 31, 1960 as a contributor under Part I of this Act and who has suffered
a disability, either before or after that time, or has died,
in
any case where the injury or disease or aggravation thereof resulting in the
disability or death in respect of which the application for the award is made
arose out of, or was directly connected with, the person’s service in the
Force.
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Loi sur la
pension de retraite de la Gendarmerie royale du Canada
L.R.,
1985, ch. R-11
32. Sous réserve des autres dispositions
de la présente partie, une compensation conforme à la Loi sur les pensions
doit être accordée, chaque fois que la blessure ou la maladie — ou son
aggravation — ayant causé l’invalidité ou le décès sur lequel porte la
demande de compensation était consécutive ou se rattachait directement au
service de l’intéressé dans la Gendarmerie, à toute personne, ou à l’égard de
celle-ci : […]
b) ayant
servi dans la Gendarmerie à tout moment après le 31 mars 1960 comme
contributeur selon la partie I de la présente loi, et qui a subi une
invalidité avant ou après cette date, ou est décédée.
|
|
[…]
|
[…]
|
|
Pension
Act
R.S.C.
1985, c. P-6
35.
(1) […] the amount of pensions for disabilities shall […] be determined in
accordance with the assessment of the extent of the disability resulting from
injury or disease or the aggravation thereof, as the case may be, of the
applicant or pensioner.
|
Loi sur les pensions
L.R.,
1985, ch. P-6
35.
(1) […] le montant des pensions pour invalidité est […] calculé en fonction
de l’estimation du degré d’invalidité résultant de la blessure ou de la
maladie ou de leur aggravation, selon le cas, du demandeur ou du pensionné.
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[7]
The initial decision
of the Veterans Review and Appeal Board Canada on June 1, 2005 was to award a 3/5
pension. After further review in 2006, that was changed to a 5/5 pension. The
pension was awarded on the basis that Constable Lebrasseur was disabled by a
mental illness caused by the acts of senior RCMP officers in and after May of
2001.
Section
9 of the Crown Liability and Proceedings Act
[8]
The Crown filed a
notice of motion in the Federal Court for an order striking the amended
statement of claim and dismissing the action on the basis that it is barred by
section 9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c.
C-50, which reads as follows:
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9.
No proceedings lie against the Crown or a servant of the Crown in respect of
a claim if a pension or compensation has been paid or is payable out of the
Consolidated Revenue Fund or out of any funds administered by an agency of
the Crown in respect of the death, injury, damage or loss in respect of which
the claim is made.
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9.
Ni l’État ni ses préposés ne sont susceptibles de poursuites pour toute perte
— notamment décès, blessure ou dommage — ouvrant droit au paiement d’une
pension ou indemnité sur le Trésor ou sur des fonds gérés par un organisme
mandataire de l’État.
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[9]
Justice Mactavish
concluded that all of the claims in the amended statement of claim are barred
by section 9 of the Crown Liability and Proceedings Act because they are
based substantially on the same factual allegations as the pension awarded to
Constable Lebrasseur (citing Prentice v. Canada (Royal Canadian
Mounted Police), 2005 FCA 395, Dumont v. Canada; Drolet v. Canada,
2003 FCA 475, and Sarvanis v. Canada, [2002] 1 S.C.R. 921). For that
reason, she granted the Crown’s motion, struck the statement of claim and
dismissed the action. It is argued for Constable Lebrasseur and Mr. Lebrasseur
that Justice Mactavish erred in law in granting the motion.
[10]
The leading case on
the interpretation of section 9 of the Crown Liability and Proceedings Act is
Sarvanis (supra) (see paragraphs 19 to 30, per Justice Iacobucci,
writing for the Court). For the purposes of this case, the key passages are
found in paragraphs 28 and 29, which read as follows (emphasis in original):
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[28]
In my view, the language in s. 9 of the Crown Liability and Proceedings
Act, though broad, nonetheless requires that such a pension or
compensation paid or payable as will bar an action against the Crown be made
on the same factual basis as the action thereby barred. In other words,
s. 9 reflects the sensible desire of Parliament to prevent double recovery
for the same claim where the government is liable for misconduct but has
already made a payment in respect thereof. That is to say, the section
does not require that the pension or payment be in consideration or
settlement of the relevant event, only that it be on the specific basis
of the occurrence of that event that the payment is made.
[29] This breadth is necessary to ensure that there is no
Crown liability under ancillary heads of damages for an event already
compensated. That is, a suit only claiming for pain and suffering, or
for loss of enjoyment of life, could not be entertained in light of a pension
falling within the purview of s. 9 merely because the claimed head of damages
did not match the apparent head of damages compensated for in that
pension. All damages arising out of the incident which entitles the
person to a pension will be subsumed under s. 9, so long as that pension or
compensation is given “in respect of”, or on the same basis as, the identical
death, injury, damage or loss.
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[11]
Mr. Sarvanis suffered
a disabling injury while he was a prison inmate. His disability entitled him to
a disability pension under the Canada Pension Plan, R.S.C. 1985, c.
C-8. Mr. Sarvanis also filed a statement of claim seeking damages from the
Crown on the basis that his injury was caused by the negligence of prison
officials. Justice Iacobucci, writing for the Supreme Court of Canada, found
that his claim for damages was not barred by section 9 of the Crown
Liability and Proceedings Act because his entitlement to a disability
pension was based on his past contributions plus his disability. The acts of
the prison officials that formed the basis of his tort claim were not relevant
to his pension entitlement.
[12]
This case is quite
different. Here, the wrongful acts of senior RCMP officers caused the disabling
illness that entitled Constable Lebrasseur to a pension, and she is claiming
damages based substantially on the same acts. As I read Sarvanis,
particularly the last sentence of paragraph 29, section 9 of the Crown
Liability and Proceedings Act asks whether the factual basis of Constable
Lebrasseur’s pension award and the factual basis of the claims for damages in
the amended statement of claim are the same. If the answer is yes, the claim
for damages is barred.
[13]
In this case, Justice
Mactavish asked the correct question and answered it correctly. I agree with
her that section 9 of the Crown Liability and Proceedings Act bars the
claims of Constable Lebrasseur and Mr. Lebrasseur in so far as they are based
on the same events.
Leave
to amend
[14]
Constable Lebrasseur
and Mr. Lebrasseur argued that, even if section 9 of the Crown Liability and
Proceedings Act bars their claims as now framed, they should be given leave
to amend to assert independent claims based on allegations of events that
occurred after the facts upon which the pension award was based. Their position
is that Constable Lebrasseur’s pension claim is based on events that occurred
between May of 2001 and August of 2001 when her sick leave commenced, while
some of the allegations in the statement of claim refer to further acts of
harassment that occurred in and after September of 2001.
[15]
Justice Mactavish
rejected this argument because she found it impossible to identify any
independent claims in the amended statement of claim based on events after
those alleged in Constable Lebrasseur’s pension application. I agree with
Justice Mactavish that the amended statement of claim lacks clarity in relation
to the specific timing of events that form the basis of the claims. That is a
sufficient reason for declining to disturb her refusal of leave to amend.
[16]
However, this should
be without prejudice to the right of Constable Lebrasseur and Mr. Lebrasseur to
file a new statement of claim containing claims that are not barred by section
9 of the Crown Liability and Proceedings Act because they are not based
on the same facts as Constable Lebrasseur’s pension award.
[17]
In light of the
possibility of a new statement of claim being filed, it is necessary to
consider the second reason given by Justice Mactavish for refusing leave to
amend. Her second reason essentially accepts the argument of the Crown that,
even if one or more of Constable Lebrasseur’s claims are not barred by section
9 of the Crown Liability and Proceedings Act, the Federal Court should
decline jurisdiction because the alleged wrongful acts of the senior RCMP
officers are the proper subject of a grievance under Part III of the Royal
Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (sections 31 to 36).
Subsection 31(1) reads as follows:
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31. (1) Subject to
subsections (2) and (3), where any member is aggrieved by any decision, act
or omission in the administration of the affairs of the Force in respect of
which no other process for redress is provided by this Act, the regulations
or the Commissioner’s standing orders, the member is entitled to present the
grievance in writing at each of the levels, up to and including the final
level, in the grievance process provided for by this Part.
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31.
(1) Sous réserve des paragraphes (2) et (3), un membre à qui une décision, un
acte ou une omission liés à la gestion des affaires de la Gendarmerie causent
un préjudice peut présenter son grief par écrit à chacun des niveaux que
prévoit la procédure applicable aux griefs prévue à la présente partie dans
le cas où la présente loi, ses règlements ou les consignes du commissaire ne
prévoient aucune autre procédure pour corriger ce préjudice.
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Justice
Mactavish agreed with the Crown on this point, citing Vaughan v. Canada, [2005] 1 S.C.R. 146 and Prentice (supra).
[18]
As I read Vaughan,
it stands for the proposition that, where an individual has recourse to a
statutory grievance scheme such as Part III of the Royal Canadian Mounted
Police Act to seek a remedy for a complaint arising from a workplace event,
the Courts generally should decline to deal with claims for damages arising out
of the same event, even if the statutory grievance scheme does not expressly
oust the jurisdiction of the courts. Although the courts retain the discretion
to hear such claims, they should exercise that discretion only in exceptional
cases. The scope of the exception remains undefined, although it is suggested
that an exception might be found if the integrity of the grievance procedure
has been compromised (which may occur, for example, in certain cases where a
whistleblower is alleging employer retaliation). The claims in issue in Vaughan were held not to be within the
exception. A similar conclusion was reached by this Court in Prentice.
[19]
The record in this
appeal contains no evidence that impugns the integrity of the grievance
procedure in Part III of the Royal Canadian Mounted Police Act. Also, it
is not clear what grievances, if any, Constable Lebrasseur has already made or
might have made, and what remedies might have been obtained. The result is that
the record contains no basis for determining whether there is any room in this
case for the exercise of the residual discretion of the Federal Court to hear
Constable Lebrasseur’s claims despite the statutory grievance procedure in Part
III of the Royal Canadian Mounted Police Act. Contrary to the suggestions
of counsel for Constable Lebrasseur and Mr. Lebrasseur, it seems to me that the
onus of establishing the facts in this regard rests on them, not on the Crown.
This conclusion does not affect the outcome of this appeal, but it may
constrain the scope of any claims that may be set out in any new statement of
claim that Constable Lebrasseur and Mr. Lebrasseur may choose to file.
[20]
I would dismiss this
appeal with costs, without prejudice to the right of Constable Lebrasseur and
Mr. Lebrasseur to file a new statement of claim as explained in these reasons.
“K.
Sharlow”
“I
agree
J.
Richard C.J.”
“I
agree
M.
Nadon J.A.”
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