Dumont v. Canada, 2003 FCA 475

Date: 20031215

Dockets: A‑376‑02

A‑377‑02

Citation: 2003 FCA 475

CORAM:       DESJARDINS J.A.

LÉTOURNEAU J.A.

NOËL J.A.

BETWEEN:

                                                                                                                                             A‑376‑02

                                                           GEORGES DUMONT

                                                                                                                                            Appellant

                                                                           and

HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                     ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

                                                                                                                                             A‑377‑02

                                                        JEAN‑CLAUDE DROLET

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                                  Hearing held at Québec, Quebec, on September 15, 2003.

                              Judgment delivered at Ottawa, Ontario, on December 15, 2003.

REASONS FOR JUDGMENT:                                                                            DESJARDINS J.A.

CONCURRED IN BY:                                                                                       LÉTOURNEAU J.A.

                                                                                                                                            NOËL J.A.

Date: 20031215

Dockets: A‑376‑02

A‑377‑02

Citation: 2003 FCA 475

CORAM:       DESJARDINS J.A.

LÉTOURNEAU J.A.

NOËL J.A.

BETWEEN:

                                                                                                                                              A‑376‑02

                                                            GEORGES DUMONT

                                                                                                                                              Appellant

                                                                            and

HER MAJESTY THE QUEEN

                                                                                                                                          Respondent

                      ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

                                                                                                                                              A‑377‑02

                                                        JEAN‑CLAUDE DROLET

                                                                                                                                              Appellant

                                                                            and

                                                     HER MAJESTY THE QUEEN

                                                                                                                                          Respondent

                                                     REASONS FOR JUDGMENT

DESJARDINS J.A.

[1]               This is an appeal and a cross-appeal, in each of these two cases, where the facts, though different, involve the same legal principles.

[2]               The two appellants, both members of the Canadian Forces at the relevant time, are challenging the decisions by a trial judge (Dumont v. Canada, [2002] F.C.J. No. 849 and Drolet v. Canada, [2002] F.C.J. No. 848), staying their tort claims against the respondent until each of them has made a formal application for indemnity under the Pension Act, (R.S.C. 1985, c. P‑6).

[3]               The respondent, by cross-appeal, argues that the trial judge should have struck the actions rather than staying them, in view of the conclusion she reached in the interpretation of section 9 of the Crown Liability and Proceedings Act, (R.S.C. 1985, c. C‑50) (the Act).

1.         THE FACTS

[4]               Sergeant (RT) Georges Dumont (Dumont) became a member of the Canadian Forces on or about March 3, 1981, and remained a member until he was discharged for medical reasons on or about November 19, 2001. He was assigned to peacekeeping missions in Cyprus, Somalia, Yugoslavia and Haiti, to name a few.

[5]               The plaintiff made an application to the Minister of Veterans’ Affairs (the Minister) to obtain a pension for physical and psychological disabilities after what he describes to be post‑traumatic stress disorder and depression. The Minister acknowledged that Dumont was suffering from a major depression for which he was entitled to a pension under subsection 21(2) of the Pension Act, and decided that the related disability should be provisionally assessed at 10%, but he refused the application for a disability pension related to post-traumatic stress disorder.

[6]               Warrant Officer Jean‑Claude Drolet (Drolet) became a member of the Canadian Forces on or about July14, 1981. He was assigned to various peacekeeping missions in Cyprus, Croatia, Haiti and East Timor, to name a few. He has been on continuous medical leave since the beginning of April 2001. A clinical report, signed by a psychiatrist, indicates that he had no symptoms of psychological problems or mental disorder before his mission to Haiti in 1997, but that, during his stay in that country, he experienced a major traumatic event. He had volunteered as a diver to recover the victims of a shipwreck. The vessel had sunk to a depth of about 120 feet, carrying dozens of passengers with her. He was the first to dive and he experienced horror and helplessness at the sight of the bodies trapped in the wreck. He even experienced a major bout of panic after a period of disorientation caused by poor visibility. He was removed by a fellow diver (appellant’s Appeal Book, page 75).

[7]               Drolet applied to the Minister to obtain a pension for physical and psychological disabilities resulting from what he describes as post‑traumatic stress disorder. The Minister acknowledged that Drolet was suffering from this disorder, which entitled him to a pension under subsection 21(1) of the Pension Act, and decided that the related disability should be provisionally assessed at 60%.

[8]               These two decisions by the Minister were not brought for review before the Veterans Review and Appeal Board. The appellants did not ask the Minister to reconsider his decisions in light of new facts, either. There was no application for judicial review of these decisions filed with the Federal Court.

[9]               Each of the appellants then brought an action in damages against the respondent, one (Dumont) in the amount of $2,844,000 and the other (Drolet) in the amount of $3,017,712.

2.         THE MOTIONS TO STRIKE AND THE MOTIONS TO STAY

[10]           In each case, the respondent presented a motion to strike out the action under paragraphs 221(1)(a) and (f) of the Federal Court Rules, 1998, SOR/98‑106, which read as follows:

[11]           Alternatively, the respondent asked for a stay of proceedings under subsection 111(2) of the Pension Act and paragraph 50(1)(b) of the Federal Court Act, (R.S.C. 1985, c. F‑7), should the Court fail to find that all of the damages claimed by the appellants technically entitled them to a pension pursuant to the Pension Act.

[12]           Section 111 of the Pension Act reads as follows:

[13]           Paragraph 50(1)(b) of the Federal Court Act reads as follows:

[14]           The respondent submits, in its two motions to strike, that the actions brought by the appellants are claims for damages for disability caused by an injury or a disease or an aggravation thereof, incurred during or attributable to military service (section 21 of the Pension Act), and that this disability gives rise to a pension entitlement.

[15]           Paragraphs 21(1)(a) and 21(2)(a) of the Pension Act provide as follows:

[16]           According to the respondent, the motion must be struck under section 9 of the Crown Liability and Proceedings Act.

[17]           The tortious liability of the Crown is recognized in these terms in section 3 of the aforementioned Act:

[18]           Section 9 of the Act limits this liability when it involves “a pension . . . paid . . . in respect of the death, injury, damage or loss . . . .” This section provides:

3.             GENERAL PRINCIPLES APPLICABLE TO A MOTION TO STRIKE A STATEMENT OF CLAIM AND A MOTION TO STAY PROCEEDINGS

[19]           Both parties agree that, in order for a motion to strike a statement of claim to be successful, the moving party must demonstrate that it is “[TRANSLATION] plain and obvious beyond a reasonable doubt” that the action is certain to fail. So, in view of the exceptional nature of this kind of motion, all of the facts pleaded in the statement of claim must be taken as proved.

[20]           In support of this position, the parties cited Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at page 979, where Wilson J. reviewed the history of the various tests used by the Supreme Court of Canada on a motion to strike a statement of claim. First, Wilson J. borrowed the words of Estey J., speaking for the Court in Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, at page 740:

As I have said, all the facts pleaded in the statement of claim must be deemed to have been proven. On a motion such as this a court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases and where the court is satisfied that “the case is beyond doubt”: Ross v. Scottish Union and National Insurance Co.

[21]           Wilson J. then repeated the comments that she herself made in Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at pages 486‑487:

The law then would appear to be clear. The facts pleaded are to be taken as proved. When so taken, the question is do they disclose a reasonable cause of action, i.e. a cause of action “with some chance of success” (Drummond‑Jackson v. British Medical Association, [1970] 1 All E.R. 1094) or, as Le Dain J. put it in Dowson v. Government of Canada (1981), 37 N.R. 127 (F.C.A.), at p. 138, is it “plain and obvious that the action cannot succeed?”

[22]           She had written earlier, at page 477 (the emphasis is that of Wilson J. in Hunt, supra, at pages 979‑980):

It would seem then that as a general principle the Courts will be hesitant to strike out a statement of claim as disclosing no reasonable cause of action. The fact that reaching a conclusion on this preliminary issue requires lengthy argument will not be determinative of the matter nor will the novelty of the cause of action militate against the plaintiffs. [Emphasis added.]      

[23]           She also pointed to the formulation she had adopted in Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279, where she wrote:

( . . . ) Most recently, in Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279, I made clear at p. 280 that it was my view that the test set out in Inuit Tapirisat was the correct test. The test remained whether the outcome of the case was “plain and obvious” or “beyond reasonable doubt”.

[24]           Finally, she summarized the caselaw on the subject:

( . . . ) assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff’s statement of claim be struck out under Rule 19(24)(a).          

[25]                The caselaw is silent, however, in the case of a stay of proceedings. We must refer to the terms of subsection 111(2) of the Pension Act which, as set out earlier, begins as follows:

111. (2) An action that is not barred by virtue of section 9 of the Crown Liability and Proceedings Act shall, on application, be stayed until (. . . )

[26]                   Therefore, if the Court has a reasonable doubt about striking out a statement of claim under section 9 of the Crown Liability and Proceedings Act, it shall be stayed until “ . . . an application for a pension in respect of the same disability or death has been made and pursued in good faith and . . .  a decision to the effect that no pension may be paid to or in respect of that person in respect of the same disability or death has been confirmed by an appeal panel of the Veterans Review and Appeal Board in accordance with the Veterans Review and Appeal Board Act” (subsection 111(2) of the Pension Act).

4.             THE STATEMENTS OF CLAIM

[27]                   Since the facts pleaded in the respective statements of claim are to be taken as proved, it is important to grasp what is stated therein.

[28]                   Dumont alleges that, despite the fact that his superior officers were well aware that the missions in which he participated had a traumatic aspect, no treatment was offered to him to help reduce his stress. The respondent’s employees, agents and personnel knew that this lack of treatment would cause irreparable harm to his health, and that the deterioration of his state of health, with permanent sequelae, was the direct result of their actions and their negligence. His superior officers overworked him, especially at Valcaltier, thereby permanently destroying his physical and mental integrity. He was assigned tasks usually reserved for senior non‑commissioned officers. For example, from October 1995 to January 1997, he was forced to do the work of a warrant officer for 15 months, without having the necessary qualifications. From November 1997 to May 1998, he was forced to do warrant officer work for seven months. From June 1998 to October 1999, he was forced to do warrant officer work for 17 months. He claims to suffer permanently from the following problems:

(a)        Major depression;

(b)        A great deal of internal distress;

(c)        Serious disturbance of interpersonal relationships;

(d)        Significant feelings of aggression, resulting in serious symptoms of irritability;

(e)        Serious post-traumatic stress, resulting in major problems at the family level;

(f)         Great difficulty adapting socially and living in an urban setting;

(g)        Pronounced intolerance to stress;

(h)        Symptoms of overstimulation;

(I)        Increasing demoralization;

(j)         Difficulty concentrating.

[29]                   Drolet alleges that he was subjected to traumatic conditions, although no treatment was offered to him to reduce his stress. He enumerates eight periods in which he was forced to do work for which he was not qualified, or work that was meant for a non-commissioned officer of a higher rank than his own. He claims to permanently suffer from the following problems:

(a)        Major depression;

(b)        A great deal of internal distress;

(c)        Serious disturbance of interpersonal relationships;

(d)        Significant feelings of aggression, resulting in serious symptoms of irritability;

(e)        Serious post-traumatic stress, causing serious symptoms of irritability, loss of interest, and emotional detachment (including serious problems at the family level);

(f)         Significant decrease in social activities;

(g)        Pronounced intolerance to stress;

(h)        Symptoms of overstimulation;

(I)        Increasing demoralization;

(j)         Difficulty concentrating.

[30]                   Both appellants allege that the respondent’s employees, personnel or agents were negligent toward them. They allege that their superiors breached their legal obligations, abused their authority, breached their fiduciary obligations and breached section 7 of the Canadian Charter of Rights and Freedoms (the Charter).

[31]                   The appellants explain that the respondent breached its fiduciary obligations in that it did not set up any therapy or assistance service to help the appellants adapt to their return from missions even though it knew or ought to have known that they needed this help. The respondent did not set up any system to prevent them from being overworked, considerably increasing the stress suffered by the appellants. Thus, the respondent, they say, failed to fulfil its obligations of loyalty and good faith toward each of the appellants.

[32]                   To set the stage, the joint Book of Authorities, volume 1, tab 9, contains a copy of the Report to the Minister of National Defence by André Marin, Ombudsman, September 2001, on the systemic treatment of Canadian Forces members with post-traumatic stress disorder, following Corporal Christian McEachern’s complaint.

5.                     THE JUDGMENT UNDER APPEAL

[33]                   The trial judge relied on the Supreme Court of Canada’s decision in Sarvanis v. Canada, [2002] 1 S.C.R. 921, to determine that the appellants’ statements of claim had the same factual basis as the pension that they were receiving or could receive.

[34]                   In Dumont, supra, the trial judge noted that the depression and post-traumatic stress disorder that the appellant reported were the only two illnesses complained of in his action, the other damages being the symptoms of illness (paragraph 14 of her reasons). The appellant was already receiving a partial disability pension for depression. The post-traumatic stress disorder could also entitle him to a pension if such an application were made and if it were determined that the application was well-founded.

[35]                   In Drolet, supra, the judge also ruled that the post-traumatic stress disorder for which Drolet was receiving a pension had the same factual basis as the post-traumatic stress disorder that he reported in his statement of claim. As for the appellant Drolet’s major depression attributable to overwork, stressful events that took place during missions abroad, and the defendant’s failure to provide him with adequate medical care, she held that this was an illness which could entitle him to a pension, if an application were made and if the allegations were judged to be well-founded.

[36]                   The trial judge distinguished Duplessis v. Canada, [2000] F.C.J. No. 1917, from the two cases before her in that, in Duplessis, there was an element of discrimination and Sergeant Duplessis was alleging “alienation or stigmatization, mental suffering, humiliation and loss of dignity” (paragraph 19 of her reasons). The trial judge dismissed the appellants’ claim about the respondent’s negligence on the ground that it was extinguished by section 9 of the Crown Liability and Proceedings Act — the interpretation given in Sarvanis, supra. Further, she declared that the allegation of the two appellants based on the respondent’s breach of its fiduciary obligations was only incidental to the damage for which the appellants were already receiving a pension. She relied on paragraph 29 of the judgment in Sarvanis, supra, to justify her reasoning on this point.

[37]                   In Dumont, supra, she ordered that the proceedings be stayed until the Minister, upon the applicant’s formal application pursuant to sections 79 et seq. of the Pension Act, had decided on Dumont’s eligibility to a pension under this Act for disability resulting from post-traumatic stress disorder.

[38]                   In Drolet, supra, she also stayed the proceedings before her until the Minister, upon formal application, had decided on the eligibility resulting from a major depression.

6.                     ANALYSIS

[39]                   The appellants placed a great deal of emphasis, in their claims, on the incompetence that the respondent’s employees, personnel or agents showed toward them, their negligence in fulfilling all of their legal obligations, the abuse of authority that they exhibited, the respondent’s failure to fulfill its fiduciary obligation and its breach of section 7 of the Charter.

[40]                   I will analyze these issues in the following order:

1.     Does the Crown, in this case, have a fiduciary role in relation to the appellants?

2.     Do the damages suffered by the appellants entitle them to a pension within the meaning of section 9 of the Crown Liability and Proceedings Act?

3.     What is the nature of the recourse based on section 7 of the Charter?

1.     Does the Crown, in this case, have a fiduciary role in relation to the appellants?

[41]                   The appellants state that the Crown failed to fulfill its fiduciary role. They did not, however, provide any details about the content of this duty and the nature of the alleged breach that would enable the Court to clearly distinguish the facts that give rise to a tort action from those that give rise to the breach of fiduciary duty. Paragraphs 26 of the statements of claim of Dumont and Drolet, each of which is entitled “[Translation] breach of its fiduciary duty”, put particular emphasis on the absence of therapy or assistance to help Canadian Forces members, such as the appellants, to adapt upon their return from missions.

[42]                   The legal concept of negligence is well known in law. The fiduciary concept, especially in this context, is more recent. This is a fluid concept, developed in relationships where an individual must demonstrate the highest degree of good faith and where there often is no adequate recourse in law for the aggrieved individual. (Beverley M. McLachlin “The Place of Equity and Equitable doctrines in The Contemporary Common Law World: A Canadian Perspective”: Donovan W. M. Waters, Equity, Fiduciaries and Trusts, Carswell, 1993, page 37 and notably at page 40; Leonard Ian Rotman, Parallel Paths: Fiduciary Doctrine and the Crown‑Native Relationship in Canada (Toronto: University of Toronto Press, 1996), page 152).

[43]                   The appellants rely on the decision by Prothonotary Aronovitch in Duplessis, supra, whose findings were confirmed by Lemieux J., [2001] F.C.J. No. 1455. This Court, in a judgment reported at [2002] F.C.J. No. 1277, then refused to intervene with Lemieux J.’s decision on the ground that it was not persuaded “that Lemieux J. was clearly wrong in dismissing the motion to strike the Statement of Claim”.

[44]                   The facts in Duplessis, supra, are as follows. Sergeant Duplessis served on peacekeeping missions in Croatia and Bosnia. Upon his return, he suffered from various stress-related symptoms. The military and medical authorities disregarded his requests for treatment. Sergeant Duplessis alleged in his statement of claim that the reaction of his superiors amounted to discrimination based on his Afro‑Canadian ancestry and on the psychological nature of his injuries. In his action for damages, Sergeant Duplessis claimed that the Crown had been negligent, had breached its legal and fiduciary duties, and had breached sections 7 and 15 of the Charter.

[45]                   The motion to strike the statement of claim was dismissed by Prothonotary Aronovitch.

[46]                   In her reasons, she analysed the fiduciary duty of the Crown at length, beginning with a reminder that the categories of fiduciaries are not exhaustive. Citing several decisions of the Supreme Court of Canada, including Guerin v. Canada, [1984] 2 S.C.R. 335 and Frame v. Smith, [1987] 2 S.C.R. 99, she noted “continued prospects for the development of new fiduciary relationships” in the military (paragraph 31 of her reasons). She listed three general characteristics set out by Wilson J., dissenting, in Frame, supra, a family law case. According to Wilson J., relationships in which a fiduciary relationship have been recognized appear to have the following general characteristics:

(1)        The fiduciary has scope for the exercise of some discretion or power.

(2)        The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.

(3)        The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

[47]                   Prothonotary Aronovitch emphasized, at paragraph 30 of her reasons, that the terms “power” and “particularly vulnerable” have scope for interpretation and have not been judicially considered in respect of the relationship of the soldier to the Department of National Defence.

[48]                   To this, she added that “No jurisprudence was submitted wherein these terms have been considered in the context of military service or would preclude a determination that the relationship of soldier to the Crown may be a unique relationship in the manner of Guerin. The defendant may have a stronger argument in that regard”, she declared, “but it is not conclusive.”

It was therefore far from obvious, in her opinion, that the application of Sergeant Duplessis would be certain to fail (See also Stopford v. Canada, [2001] F.C.J. No. 1255, at paragraphs 34‑35 and Marsot v. Canada, [2002] F.C.J. No. 313).

[49]                   Lemieux J., who sat on the appeal of this decision as a de novo proceeding, adopted Sergeant Duplessis’ argument that his claim was not for compensation for the symptoms of post‑traumatic stress, but for other injuries suffered, the damages from which were unrelated to the pension he was receiving. His action, he said, was founded on the Crown’s negligence, the breach of its fiduciary duty and  the Charter issue of discrimination based on race or mental disability. Lemieux J. came to the same conclusions as Prothonotary Aronovitch regarding fiduciary duty. He added that the law was not yet settled as to the point at which statutes like the Pension Act and the Crown Liability and Proceedings Act could affect claims founded on section 24 of the Charter. In support of this, he cited St‑Onge v. Canada, [1999] F.C.J. No. 1842 and Prete v. Ontario (Attorney General) (1993), 110 D.L.R. (4th) 94 (Ont. C.A.).

[50]                   As stated earlier, this Court refused to intervene.

[51]                   Very recently, the Supreme Court of Canada analyzed the principles pertaining to the Crown’s liability for breaching a fiduciary duty in the context of a tort action brought by children, turned adults, against the social services of British Columbia, after they had been mistreated in foster homes (K.L.B. v. British Columbia, 2003 SCC 51, and E.D.G. v. Hammer, 2003 SCC 52). The parties in this case did not dispute that the relationship between the Crown (represented by the Superintendent of Child Welfare) and the children in foster homes was of a fiduciary nature.

[52]                   The views of the parties diverged regarding the content of the duty that this fiduciary relationship placed on the Crown. For the purposes of my analysis in this case, I note that at paragraphs 47 and 48 of her reasons in K.L.B., supra, Chief Justice McLachlin, for the Court (Arbour J. concurring with the majority on this point), states that the breach of fiduciary duty traditionally stems from a breach of trust, and that different duties may arise from the same relationship and circumstances at common law (tort of negligence) and in equity (breach of fiduciary duty). She added that causes of action based on equity do not duplicate those provided by the common law; they supplement them (Emphasis in the original).

[53]                   For the time being, I accept that the appellants are relying as much on the common law as on equity to support their actions against the respondent. In light of this finding, I turn to the study of the Crown Liability and Proceedings Act, including sections 36 and 9 of this Act. I will come back, however, to this fiduciary duty and the problems with its application in this case.

2.     Do the damages suffered by the appellants entitle them to a pension within the meaning of section 9 of the Crown Liability and Proceedings Act?

[54]                   Before 1992, the Crown Liability and Proceedings Act only covered tort actions against the federal Crown. This Act, entitled the Crown Liability Act, adopted in 1953, marked the end of the Crown’s immunity for torts, sanctioned by the prerogative according to which “The King can do no wrong”.

[55]                   The current Act has two distinct parts. Part I is entitled “Liability”. The word “liability” is defined in section 2 of the Act as follows:

[56]                   Section 9 of this Act is only found in Part I and not in Part II.

[57]                   Part II deals with proceedings.

[58]                   The word “proceedings” is not defined but, in its context, necessarily has a very broad meaning.

[59]                   Section 36 of the Act, in Part II, deems that a member of the Canadian Forces is a servant of the Crown “[f]or the purposes of determining liability in any proceedings by or against the Crown”. Said section 36 reads as follows:

[60]                   Given the broad interpretation that must be given to the words “any proceedings”, this section contemplates both tortious liability and contractual liability and possibly the liability of the Crown in equity, if it exists in this context. Furthermore, to make a finding of liability, the presumption of law in section 36, which allows a member of the Canadian Forces to be deemed a servant of the Crown, forecloses the provisions of the National Defence Act, R.S.C. 1985, c. N‑5, that deal with the status of members of the Canadian Forces and refers us back to the common law.

[61]                   In the employer‑employee context at common law, it is far from being accepted that a fiduciary relationship could exist because the “discretion” referred to by Wilson J. in Frame, supra (paragraph 46 of these reasons), if exercised in an abusive manner, gives rise in law to an actionable tort.

[62]                   In fact, the Crown-employer’s duties and its liability upon breach of its duties exist independently of the purported fiduciary relationship.

[63]                   This is confirmed when we refer to subsection 21(1) of the Pension Act, which the respondent relies upon in paragraph 81 of her memorandum, and to subsections 21(2) and (3) of the Act, to which the parties drew our attention in their submissions. The damages claimed by the appellants in their allegations bearing upon the fiduciary relationship are all connected to their military service. They are all the result of “an injury or disease or an aggravation thereof”. They arise from, or are connected to, their military service. They all give entitlement to a pension. They could all be the subject of a tort action absent the prohibition provided by section 9 of the Act.

[64]                   Section 9 of the Crown Liability and Proceedings Act was the subject of a detailed examination by the Supreme Court of Canada in Sarvanis, supra. In that case, it had to be determined if section 9 of the Act had the effect of absolving the Crown of all liability when an individual received a pension.

[65]                   Sarvanis was a prisoner who suffered serious injuries while he was working in the hay barn of the prison where he was detained. There was a reasonable possibility that the Crown would be liable if the matter were to go to trial. Sarvanis became the recipient of a disability pension under the Canada Pension Plan (CPP). However, he brought an action in tort against the Crown, which cited section 9 of the Crown Liability and Proceedings Act in the motion for summary judgment.

[66]                   The specific issue was whether a disability pension paid under the CPP was paid “in respect of . . . death, injury, damage or loss in respect of which the claim is made”. Therefore, the words “in respect of” had to be interpreted.

[67]                   Iacobucci J. interpreted these words in light of the context of section 9 of the Act, i.e. in cases of “death, injury, damage or loss” and concluded that “the loss the recovery of which is barred by the statute must be the same loss that creates an entitlement to the relevant pension . . .” (paragraph 27 of his reasons). Iacobucci J. added that, for section 9 of the Act to bar an action against the Crown, the pension or compensation paid or payable must have the same factual basis as the action. Parliament’s intention was to prevent double recovery. A broad meaning of the words “in respect of” was necessary in order to ensure that there was no Crown liability under ancillary heads of damages for an event already compensated. He stated at paragraphs 28, 29 and 30 of his reasons:

[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.

[30] Although such comments are not determinative, I note that this view is consistent with comments made by the Minister of the day in debating the original Crown Liability Act in 1953. The Minister likened the type of pensions the receipt of which was intended to bar other actions to provincial worker’s compensation legislation, in which the right to sue was exchanged, as it were, for comprehensive administrative compensation (House of Commons Debates, vol. 4, 7th Sess., 21st Parl., March 26, 1953, at p. 3333).

[68]                   Then applying these principles to the CPP, Iacobucci J. determined that the payments referred to in section 9 of the Act depend, to a certain extent, on the occurrence of an event amounting to a “death, injury, damage or loss”, while CPP disability payments are not contingent on events at all, but depend on the status of the applicant as disabled at the time the application is made (paragraph 31 of his reasons).

[69]                   In conclusion, Iacobucci J. held that Sarvanis had the right to a CPP pension because of his disabled status and that the factual basis of his tort action was distinct from the facts giving rise to his pension.

[70]                   Iacobucci J., in obiter, then compared section 9 of the Crown Liability and Proceedings Act and the Pension Act, which provides for the payment of a pension to members of the Canadian Forces who are injured in the course of their military service. He stated (at paragraph 35 of his reasons) that these pensions are paid on the same basis as a tort claim, while amounts paid under the CPP are paid on the same basis as an insurance claim. He then goes on to say that, contrary to the Canada Pension Plan Act, R.S. 1985, c. C‑8, the Pension Act contains a specific provision barring a tort action. Thus, the Pension Act, in contrast to the Canada Pension Plan Act, is a comprehensive scheme designed to ensure the efficacious compensation of persons for their injuries and losses incurred in the public service.

[71]                   The Pension Act in force at the time of the Sarvanis and Duplessis decisions, supra, provided at section 111 that all tort actions were prohibited in the circumstances described in this section. That section provided as follows:

[72]                   The new section 111 that came into force on October 27, 2000 now requires the Court, in all cases dealing with an action not barred by virtue of section 9 of the Act, to stay the action until a pension application has been made. If it is an action barred by section 9, the tort action is prohibited.

[73]                   I conclude that, even if the appellants rely on the fiduciary relationship of the Crown, their actions are essentially tort actions. These actions are prohibited under section 9 of the Act because any loss or damage that is claimed gives entitlement to payment of a pension. These actions must be struck because it is “plain and obvious beyond a reasonable doubt” that they cannot succeed.

3.     What is the nature of the recourse based on section 7 of the Charter?

[74]                   The breach of an obligation under section 7 of the Charter gives rise to a recourse under subsection 24(1), which provides as follows:

[75]                   Professor Peter W. Hogg, in his well-known work “Constitutional Law of Canada”, notes that subsection 24(1) of the Charter “provides for the granting of a remedy to enforce the rights or freedoms guaranteed by the Charter” (Constitutional Law of Canada, looseleaf, Scarborough: Carswell, 1999, 37.2(a)).

[76]                   In St‑Onge, supra, Hugessen J. concludes, at paragraph 5 of his reasons, that the adoption of the Charter did not destroy the existing legal system of legislation and procedures provided that they are compatible with the Charter. This Court upheld this judgment, [2000] F.C.J. No. 1523.

[77]                   Further, the Supreme Court of Canada in a majority judgment (Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62), explains that subsection 24(1) of the Charter commands a broad and purposive interpretation and that the language of this provision appears to confer the widest possible discretion on a court to craft remedies for violations of Charter rights (paragraph 24 of the reasons). This same majority notes that the remedies provisions must be interpreted in a way that provides a full, effective and meaningful remedy (paragraph 25 of the reasons). It adds that the power of the superior courts under subsection 24(1) of the Charter cannot be strictly limited by statutes or rules of the common law. (paragraph 51 of the reasons).

[78]                   The appellants did not explain in any way how section 7 of the Charter has been infringed. However, in the event that the respondent has breached the appellant’s rights that are guaranteed by this section, it is far from certain that section 9 of the Act can be relied upon to exclude a fair and appropriate remedy in keeping with the circumstances. It is up to the judge responsible for applying subsection 24(1) of the Charter, to assess whether the pension that might be awarded is appropriate and fair in regard to the circumstances, or if it would be appropriate to add further compensation.

[79]                   In view of the uncertainty, it is in the interest of justice to stay the appellant`s actions but only insofar as they are based on section 7 of the Charter and until the conditions provided in subsection 111(2) of the Pension Act have been met.

[80]                   The appellants will have 60 days from the date of this judgment to amend their statements of claim accordingly.

7.                     CONCLUSION ON THE APPEALS

[81]                   I would dismiss the appeals except insofar as they affect that part of the actions that is based on section 7 of the Charter, in which case they will be allowed. With regard to that latter part, the actions are stayed until the requirements of subsection 111(2) of the Pension Act have been met.

8.                     CONCLUSION ON THE CROSS-APPEALS

[82]                   I would allow the cross-appeals and strike out the appellants’ actions under section 9 of the Crown Liability and Proceedings Act, except for that part of the actions that is based on section 7 of the Charter. With regard to that latter part, the cross-appeals should be dismissed and the appellants`actions should be stayed until the requirements of subsection 111(2) of the Pension Act have been met. The whole without costs.

                                                                                                                               “Alice Desjardins” 

                                                                                                                                                    J.A.

“I concur.

Gilles Létourneau J.A.”

“I concur.

Marc Noël J.A.”

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                                  FEDERAL COURT OF APPEAL

                                                     SOLICITORS OF RECORD

DOCKET:                                       A‑376‑02

STYLE OF CAUSE:                       GEORGES DUMONT v. THE QUEEN

PLACE OF HEARING:                 QUÉBEC, QUEBEC

DATE OF HEARING:                   SEPTEMBER 15, 2003

REASONS FOR JUDGMENT:    DESJARDINS J.A.

CONCURRED IN BY:                  LÉTOURNEAU J.A.

                                                         NOËL J.A.

DATE OF REASONS:                   DECEMBER 15, 2003

APPEARANCES:

Jacques Ferron                                  FOR THE APPELLANT

Vincent Veilleux                                 FOR THE RESPONDENT

SOLICITORS OF RECORD:

Jacques Ferron                                  FOR THE APPELLANT

Québec, Quebec

Department of Justice ‑ Canada         FOR THE RESPONDENT

Ottawa, Ontario

                                                  FEDERAL COURT OF APPEAL

                                                     SOLICITORS OF RECORD

Docket:                                            A‑377‑02

STYLE OF CAUSE:                       JEAN‑CLAUDE DROLET v. THE QUEEN

PLACE OF HEARING:                 QUÉBEC, QUEBEC

DATE OF HEARING:                   SEPTEMBER 15, 2003

REASONS FOR JUDGMENT:    DESJARDINS J.A.

CONCURRED IN BY:                  LÉTOURNEAU J.A.

                                                         NOËL J.A.

DATE OF REASONS:                   DECEMBER 15, 2003

APPEARANCES:

Jacques Ferron                                  FOR THE APPELLANT

Vincent Veilleux                                 FOR THE RESPONDENT

SOLICITORS OF RECORD:

Jacques Ferron                                  FOR THE APPELLANT

Québec, Quebec

Department of Justice ‑ Canada         FOR THE RESPONDENT

Ottawa, Ontario