Date: 20060706
Docket: T-1433-03
Citation: 2006 FC 852
Ottawa, Ontario, July 6, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
TERRY LYNN LEBRASSEUR and
JOSEPH ALAIN LEBRASSEUR
Plaintiffs
and
HER MAJESTY THE QUEEN,
IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
[1] Terry Lynn Lebrasseur is a member of the Royal Canadian Mounted Police who developed a major depressive disorder arising, at least in part, out of her employment. Ms. Lebrasseur has been awarded a pension equal to 3/5 of a full pension for that part of her disability arising out of, or directly connected with her service with the RCMP. Ms. Lebrasseur and her husband have also commenced an action in this Court against the RCMP, seeking damages under a range of heads for the injuries that she suffered at work.
[2] By this motion, the defendant seeks an order staying this action on the basis of section 111 of the Pension Act. In the alternative, the defendant moves to strike out the Lebrasseur's amended statement of claim as disclosing no reasonable cause of action. In the further alternative, the defendant asks that this Court defer to the grievance process available to Ms. Lebrasseur under Part III of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10.
[3] A stay under section 111(2) of the Pension Act is only available in relation to actions that are not barred by virtue of section 9 of the Crown Liability and Proceedings Act (CLPA). For the reasons that follow, I am satisfied that most of the Lebrasseurs' action is indeed barred by section 9 of the CLPA, and that, as a result, their statement of claim should be struck out as disclosing no reasonable cause of action.
[4] To the extent that it may not be plain and obvious that the portion of the claim based upon events occurring after the pension was granted to Ms. Lebrasseur is barred by section 9 of the CLPA, Ms. Lebrasseur must first exercise the remedies she has under Part III of the Royal Canadian Mounted Police Act before seeking relief in this Court.
Background
[5] Ms. Lebrasseur joined the RCMP in 1993, and was latterly deployed to the Prime Minister Protective Detail. Following the receipt by the RCMP of a complaint regarding Ms. Lebrasseur from one of the individuals to whom she was assigned to protect, she was reassigned to other duties.
[6] Ms. Lebrasseur asserts that the actions of the RCMP amounted to a constructive dismissal. She also alleges that she was harassed and humiliated by the RCMP, causing her serious psychological injuries from which she continues to suffer.
[7] On August 7, 2003, Ms. Lebrasseur and her husband commenced an action against the defendant, in which they claim damages based upon the alleged negligent acts or omissions of the defendant. Also pleaded are causes of action framed in, amongst other things, contract, breach of fiduciary duty, and tort, namely the intentional infliction of mental distress. Mr. Lebrasseur's claim is based upon the provisions of the Ontario Family Law Act.
[8] On March 26, 2004, Ms. Lebrasseur applied for a disability pension pursuant to section 32 of the RCMP Superannuation Act.
[9] The defendant then moved to have this action stayed in accordance with the provisions of subsection 111(2) of the Pension Act. By order dated October 5, 2004, Prothonotary Tabib stayed the Lebrasseurs' action, pending a decision of the Veterans Review and Appeal Board (VRAB) with respect to Ms. Lebrasseur's application for a pension.
[10] On June 1, 2005, the VRAB found that the handling of events by Ms. Lebrasseur's superiors partly contributed to the development of her major depressive disorder. As a consequence, the Board awarded her 3/5 of a pension for that part of her disability that arose out of or was directly connected with her service with the RCMP. Two-fifths of the pension was withheld based upon Ms. Lebrasseur's pre-existing psychiatric condition, and her pre-disposition to injury.
[11] Prothonotary Tabib's order expired with the granting of Ms. Lebrasseur's pension. At a case management conference, the Lebrasseurs' counsel expressed a desire to amend their statement of claim in an attempt to address the defendant's concerns. An amended statement of claim was filed on December 16, 2005.
[12] The defendant then brought this motion seeking to strike out the Lebrasseurs' statement of claim, or, in the alternative, to stay the action. In the further alternative, the defendant asks that the Court decline jurisdiction, deferring to the grievance process available to Ms. Lebrasseur under Part III of the Royal Canadian Mounted Police Act.
Analysis
[13] Section 9 of the CLPA provides that:
| 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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[14] Motions to strike are governed by Rule 221 of the Federal Courts Rules. For such a motion to succeed, it must be plain and obvious that the action cannot succeed, assuming the facts alleged in the statement of claim to be true: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321.
[15] As a general rule, no evidence is admissible on a motion to strike a statement of claim as disclosing no cause of action: see Rule 221(2). Where, however, the motion is based upon a want of jurisdiction, the motion may be supported by evidence: MIL Davie Inc. v. Hibernia Mgmt. & Dev. Co.[1998] F.C.J. No. 614, 226 N.R. 369 (F.C.A.).
[16] In this case, the defendant has filed evidence with respect to Ms. Lebrasseur's pension claim, and the fact that she is in receipt of a pension for the injuries that she sustained in the course of her employment. As this evidence establishes necessary facts going to the Court's jurisdiction, I am satisfied that it is properly before the Court on this motion.
[17] The Lebrasseurs say that the defendant's motion should not be entertained as it was not brought promptly. That is, they say that it was open to the defendant to bring a motion to strike out their statement of claim at the time that the defendant first moved to stay this action in October of 2004. Having failed to do so then, it is an abuse of process for the defendant to try to do so now.
[18] I do not agree. Firstly, a review of the history of this action discloses that it has not advanced beyond the pleading stage, and I am not persuaded that there has been any undue delay on the part of the defendant.
[19] More importantly, however, the defendant's motion goes to the question of the Court's jurisdiction. It is self-evident that the Court either has jurisdiction or it does not, and any delay on the part of a defendant could not operate so as to confer jurisdiction where it does not otherwise exist. It is for this reason that Justice Hugessen observed in Dene Tsaa First Nation v. Canada, [2001] FCJ No. 1177, 2001 FCT 820, at ¶ 3-4, (varied, but not on this point by [2002] FCJ No. 427 (FCA)), that:
[W]here a motion to strike based upon [Rule 221] a) ... the motion goes to the very heart of the action itself and it is appropriate that the Court should be able to deal with matters of that sort at any stage with perhaps only cost consequences flowing if the person making the motion does so on a late basis.
[20] The Lebrasseurs also submit that the defendant's motion does not go to the Court's jurisdiction. As I understand their argument, the issue for the Court is not whether the Court has the jurisdiction to entertain their claim, but whether the Court should decline to exercise that jurisdiction in light of the wording of section 9 of the CLPA.
[21] This argument is answered by reference to the wording of section 9 itself, which provides that "no proceedings lie against the Crown" in respect of a claim where a pension has been awarded. The effect of this section is, in my view, to deprive the Court of jurisdiction to entertain the Lebrasseurs' claim, should the Court determine that the requirements of section 9 have been met.
[22] The question, then, is whether the Lebrasseurs' claim is barred by operation of section 9 of the CLPA.
[23] In answering this question, it is helpful to have regard to what the jurisprudence that is binding on me teaches with respect to the purpose and ambit of section 9 of the CLPA.
[24] As the Federal Court of Appeal noted in Prentice v. Canada (RCMP), [2005] F.C.J. No. 1954, 2005 FCA 395, at ¶ 35, the grant of immunity to the Crown as employer is reflective of "an historic compromise" in workers' compensation-type schemes by which employees forfeit their right of action against their employers in exchange for compensation that is not dependent on either the employer's liability or its ability to pay.
[25] The trade-off for this is that a worker may receive less compensation than she would perhaps have received by applying to the courts. One of the purposes of the immunity conferred by section 9 of the CLPA is to prevent employees from going to court to attempt to obtain the difference between the value of the harm actually suffered and the value of the compensation paid to the worker under the compensation scheme: Prentice, at ¶ 35.
[26] In Sarvanis v. Canada , [2002] 1 S.C.R. 921, 2002 SCC 28">2002 SCC 28, the Supreme Court of Canada considered when it is that a pension paid will be found to have been paid "in respect of ... death, injury, damage or loss". In this regard, the Court found that "the key is to recognize 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 or compensation". (at ¶ 27)
[27] The phrase "in respect of" as it is used in section 9 is to be broadly interpreted. This is because the section is intended to prevent double recovery for the same claim where the government has already made a payment in respect thereof: Sarvanis, at ¶ 28.
[28] Moreover, the fact that the heads of damages claimed in an action do not match the apparent heads of damages compensated for in the pension will not suffice to take the action outside of the ambit of section 9. As the Supreme Court noted in Sarvanis:
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. (at ¶ 29)
[29] Thus the question for the Court is whether the Lebrasseurs' action is based on the same factual foundation as was the pension awarded to Ms. Lebrasseur.
[30] A review of the Lebrasseurs' amended statement of claim discloses that they have largely removed the claims originally asserted arising out of the harassment that Ms. Lebrasseur alleges that she encountered in the workplace.
[31] That said, the fact remains that while numerous different causes of actions are pleaded, at its heart, the action remains essentially a claim for damages for the treatment that Ms. Lebrasseur says that she encountered in her workplace. As such, the action has the same factual basis as did Ms. Lebrasseur's pension claim, and thus it is barred by section 9 of the CLPA: see Dumont v. Canada, [2003] F.C.J. No. 1857, 2003 FCA 475, at ¶ 72-73.
[32] Given that Mr. Lebrasseur's claim is derivative in nature, it follows that it too is barred.
[33] The Lebrasseurs also assert that part of their civil action relates to conduct on the part of the RCMP that occurred after the awarding of the pension to Ms. Lebrasseur, and thus should not be barred by operation of section 9 of the CLPA.
[34] In particular, they point to paragraph 17 of the statement of claim, which refers to "further actions taken by the RCMP that were intentional, malicious and an abuse of its power over Terry Lebrasseur", and to paragraph 18, which refers to "the conduct of the RCMP towards [Ms. Lebrasseur] following her dismissal and during her sick leave".
[35] Having regard to the very high threshold that must be met on a motion to strike under Rule 221(a), I cannot say that it is plain and obvious that a claim based on events occurring after a pension has been granted will, of necessity, be barred by virtue of section 9 of the CLPA. Indeed, counsel for the defendant candidly conceded that a claim could properly be brought based upon a new wrong, unrelated to the actions that formed the basis of the pension claim.
[36] That said, it is not possible from a review of the amended statement of claim to identify any specific incidents that occurred after Ms. Lebrasseur applied for or was granted the pension, or to ascertain whether what is being relied upon are indeed new actions that are independent of the factual basis on which the pension was granted, or are simply the continuation of the same conduct on which the pension award was based. As a result, it is impossible to extricate that portion of the statement of claim that could potentially survive the motion to strike.
[37] Moreover, I am not persuaded that the answer is to grant the motion to strike with leave to further amend the statement of claim, as I am also satisfied that before Ms. Lebrasseur can bring a civil action against the Crown, she must first exercise the remedies she has under Part III of the Royal Canadian Mounted Police Act. Part III creates a comprehensive scheme for the resolution of workplace disputes, and allows for grievances to be brought with respect to 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 the Act: see Prentice, above, at ¶ 72, see also Vaughan v. Canada, [2005]
1 S.C.R. 146, 2005 SCC 11">2005 SCC 11.
[38] I am also not persuaded that this motion should be adjourned, as was suggested by counsel for the Lebrasseurs, so as to allow them to lead evidence with respect to the availability of relief under Part III of the Royal Canadian Mounted Police Act. The defendant's motion was brought in January, and the Lebrasseurs have had ample opportunity to put whatever evidence before the Court that they felt was appropriate or necessary.
Conclusion
[39] For these reasons, the defendant's motion to strike the Lebrasseurs' amended statement of claim is granted, and the action is dismissed, with costs.
ORDER
THIS COURT ORDERS that the defendant's motion to strike the Lebrasseurs' amended statement of claim is granted, and the action is dismissed, with costs.
"Anne Mactavish"
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