Price v. Canada (Attorney General), 2003 FCT 764

Date: 20030619

Docket: T-954-03

Citation: 2003 FCT 764

Ottawa, Ontario, June 19, 2003

Present:    The Honourable Madam Justice Danièle Tremblay-Lamer        

BETWEEN:

                         COMMANDER JAMES PRICE

                                                                Applicant

                                   and

                      ATTORNEY GENERAL OF CANADA,

                      MINISTER OF NATIONAL DEFENCE

                     and CHIEF OF THE DEFENCE STAFF

                                                              Respondents

                         REASONS FOR ORDER AND ORDER

[1]                 This is an application for an order for an interim relief, staying the operation of subsection 165.21(4) of the National Defence Act, R.S. 1985, c. N-5, (the "Act") and articles 15.17 and 101.175 of the Queen's Regulations and Orders (the "Regulations") as they apply to the applicant, until final disposition of the matter, and prohibiting the respondents from terminating the applicant's service as a military judge.

[2]                 The applicant, James Price, is an officer in the Canadian Forces, with the rank of Commander. He is currently 54 years of age.

[3]                 On January 20, 2001, he was appointed, by Order-in-Council, as a military judge for a term of five years pursuant to subsection 165.21(1) of the Act which provides:

[4]                 Subsection 165.21(4) of the Act specifies that a military judge ceases to hold office on reaching the retirement age specified in the regulations:

[5]                 Article 101.175 of the Regulations states:

[6]                 The applicable table to article 15.17 provides that the retirement age for Lieutenant-Colonel and Major is 55 years of age.

[7]                 The applicant will cease to hold office as a military judge on July 3, 2003 as a result of subsection 165.21(4) of the Act and articles 15.17 and 101.175 of the Regulations.

[8]                 The Minister of National Defence has announced that it intends to extend the compulsory retirement age for all members of the Canadian forces, including military judges, to 60 years of age. However, this proposal has not yet been adopted by the Governor-in-Council, and it is questionable whether it will be adopted prior to July 3, 2003, when the applicant will be forced to retire.

[9]                 The applicant has brought an application under Rule 18.1 of the Federal Court Rules, 1998, (SOR/98-106) for among other related remedies, a declaration that the compulsory retirement regime under subsection 165.21(4) of the Act and articles 15.17 and 101.175 of the Regulations infringe section 15 of the Canadian Charter of Rights and Freedoms, (the "Charter") and are not justified by section 1 of the Charter.

[10]            Since the judicial review application will not be heard before July 3, 2003, the applicant is bringing this motion for interim relief because he alleges that he will suffer irreparable harm if he is forced to retire on July 3, 2003.

[11]            In determining whether to grant a stay in the context of a constitutional challenge, the Court must satisfy itself that there is a serious issue to be tried, that it will suffer irreparable harm if the stay is not granted and that the balance of convenience favours the applicant. The test is conjunctive. The applicant is only entitled to the relief sought if he is able to satisfy all three branches of the test (RJR.- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311).

[12]            The first branch of the test involves the determination of whether the applicant has raised a serious issue. The courts employ a low threshold for determining whether a serious issue exists. An application meets the threshold if the application is neither vexatious nor frivolous (RJR -MacDonald, supra).

[13]            The applicant argues that the current Canadian forces compulsory retirement regime infringes section 15 of the Charter and it is unlikely that the compulsory retirement age of 55 could be justified under section 1 of the Charter because, given the announced regulatory changes, the government has in effect acknowledged that there is no significant objective to be served in requiring military judges to retire upon reaching their 55^th birthday.

[14]            Given the issues raised and the relatively low threshold traditionally applied by the Courts, the respondents concede for the purposes of this motion that the applicant has raised a serious issue.

[15]            I am satisfied that a serious issue has been raised by the applicant. The question of whether the current Canadian forces compulsory retirement regime based entirely on age is unconstitutional certainly meets the threshold of a serious issue.

[16]            The second branch of the test involves the determination of whether an applicant seeking interim relief would, unless the relief is granted, suffer irreparable harm. Irreparable harm refers to harm that would not be adequately compensated in damages or cured by the decision on the merits (RJR-MacDonald, supra).

[17]            The applicant argues that he will be unable to complete his tenure as a military judge and he will lose his judicial appointment on July 3, 2003 unless a stay is granted. Once he is required to vacate his judicial office, he cannot be reappointed except at the discretion of the Governor-in-Council. Even if he is reinstated in the event that his application for judicial review is successful, he will lose the opportunity to serve as a military judge during the time from July 3, 2003 until the application is heard and decided.

[18]            The applicant submits that in addition to the financial benefits of the position, his employment as a military judge provides him with a sense of dignity, feelings of satisfaction and an emotional well-being which he will not have if he is required to retire before he has served his full term as a military judge. If the stay is not granted and he loses his judicial appointment, he will suffer irreparable harm that cannot be compensated in damages.

[19]            The respondents submit that any harm suffered by the applicant if the motion is not granted can be adequately compensated by damages. The loss the applicant will suffer, if he is not successful on this motion but victorious on the merits, is the salary increment of approximately $20,000 that he will no longer receive once he ceases to occupy the office of a military judge.

[20]            The respondents dispute the applicant's allegation that his self-worth and dignity are tied to his position as a military judge. According to the respondents, the applicant is first and foremost a soldier and officer within the Canadian forces and it is reasonable to expect that his self-worth and dignity would be defined by his substantive position rather than by a fixed-term appointment. The applicant can retain that fundamental characteristic by resigning as a military judge and seeking an extension of his service as an officer. The Court's intervention is not required to protect the applicant's service as an officer of the Canadian forces because he can protect it himself by resigning as a military judge and obtaining an extension.

[21]            On the one hand, I acknowledge that the applicant does have an option in his current predicament. He is able to resign from his position as a military judge, seek an extension of his service as an officer, and then hope to be reappointed as a military judge when the current retirement regime is extended to 60 years of age. However, this is entirely at the discretion of the Governor-in-Council and there is no guarantee of a reappointment.

[22]            I also note that the applicant admitted on cross-examination on his affidavit that he was aware at the time of his appointment that the current law required him to retire on July 3, 2003, when he turned 55. He also knew that although there was a proposal to extend the retirement age for all members of the Canadian forces to the age of 60, there was no guarantee that this proposal would be adopted by the Governor-in-Council before July 3, 2003.

[23]            On the other hand, I believe that the applicant derives great satisfaction from his position as a military judge. I do not accept the respondents' assertion that this is simply a case about money. In my view, the applicant's position as a military judge provides him with benefits that are more than financial. If the interim relief is not granted he will lose the opportunity to serve out his tenure as a military judge unless reappointed. It is difficult to assign a monetary value to this loss, and I am of the opinion that such loss will not be compensable in the form of damages.

[24]            Thus, I am satisfied that the applicant will suffer irreparable harm if he loses his judicial appointment as a result of the current mandatory retirement regime.

[25]            The third branch of the test requires the Court to consider whether the balance of convenience favours the applicant or the respondent. The factors to be considered are the nature of the relief sought, the harm the parties contend they will suffer, the nature of the legislation under attack and where the public interest lies (RJR-MacDonald, supra).

[26]            The Supreme Court has held that only in clear cases are interlocutory injunctions granted against the enforcement of a law on grounds of alleged unconstitutionality. This arises from the fact that a validly enacted law is presumed to be for the public good and the assumption of the public interest in enforcing the law weighs heavily in the balance. In Harper v. Canada [2000] 2 S.C.R. 764, the Court stated at para. 9:

It follows that in assessing the balance of convenience, the motions judge must proceed on the assumption that the law...is directed to the public good and serves a valid public purpose...The assumption of the public interest in enforcing the law weighs heavily in the balance. Courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.

[27]            The applicant argues that no apparent harm will result from allowing him to continue his service as a military judge until the application is decided on the merits regardless of the outcome of the application. The only party who would be affected by a stay of subsection 165.21(4) of the Act and articles 15.17 and 101.75 of the Regulations would be the applicant because the other two individuals currently holding office as military judges are years away from their compulsory retirement dates. However, if the stay is not granted, the applicant will permanently lose his position as a military judge and suffer damage to his reputation as a result of the compulsory retirement.

[28]            According to the applicant, the assumption that laws enacted by democratically elected legislatures are directed to the common good and serve a valid purpose cannot stand in the context of this case where announcements have been made that the regulatory scheme will be changing for the purposes of serving a valid public purpose. Thus, there is no public interest served in refusing to grant the stay. In fact, the public interest would be advanced by having an experienced individual such as the applicant, who was appointed as a legal officer in 1981 and who has served as a military judge for two years, continue his term as a military judge. Furthermore, as all members of the Canadian forces, other than military judges, are given the opportunity to apply for an extension, the public interest would be served by granting a stay to ensure that all members of the Canadian forces are treated equally regardless of the position held.

[29]            The respondents submit that the public interest clearly weights against granting the interim relief sought by the applicant. The public interest lies in enforcing a valid legislative scheme; in preserving the independence of the military justice system and its ability to function; and in respecting the constitutional allocation of roles among the three branches of government.

[30]            Based on the material before me, I am of the view that the balance of convenience favours the respondents.

[31]            The purpose of an interim relief is to maintain the status quo, not to grant the applicant the ultimate relief sought. In my view, the public interest to maintain a duly enacted legislation outweighs the detriment caused to the applicant. As stated above, except in rare circumstances, the Court should not on an interlocutory motion order the applicant to act and be treated as though the legislation is unconstitutional in advance of a complete constitutional review.

[32]            In Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, the Supreme Court of Canada held that cautious restraint should be exercised when making a declaration on the constitutional validity of a law at an interim stage without a full debate of the issue. As stated by Beetz J. at p. 132:

[...] to think that the question of constitutional validity can be determined at the interlocutory stage is to ignore the many hazards of litigation constitutional or otherwise.

[33]            The same concern was expressed by Sopinka J. in RJR-MacDonald Inc, supra at p. 340. He stated that in Charter cases, all the evidence upon which the section 1 issue must be decided may not be before the motions judge. As such, a motions court should not attempt to undertake the careful analysis required for a consideration of section 1 in an interlocutory proceeding.

[34]            In Attorney General of Canada v. Gould, [1984] 1 F.C. 1133, a penitentiary inmate sought a declaration that paragraph 14(4)(e) of the Canada Elections Act, which prohibited a penitentiary inmate from voting, was invalid as contrary to the Charter. In the meantime, with a general election to be held, the applicant, upon an interlocutory injunction to the Federal Court, was granted a mandatory injunction allowing him to vote by proxy. The Federal Court of Appeal allowed the appeal on the ground that the injunction authorized the inmate to conduct himself as though the law which he sought to be declared invalid were now invalid notwithstanding that it remained in effect until the declaration sought was made. The Court was of the opinion that the declaration should not be made before trial. Mahoney J. stated at page 1140:

It [the order] was a determination that the respondent, without having had his action tried, is entitled to act and be treated as though he had already won. The order implies and is based on a finding that the respondent has, in fact, the right he claims and that paragraph 14(4)(e) [of the Canada Elections Act] is invalid to the extent claimed. That is an interim declaration of right and, with respect, is not a declaration that can properly be made before trial. The defendant in an action is as entitled to a full and fair trial as is the plaintiff and that is equally so when the issue is constitutional. The proper purpose of an interlocutory injunction is to preserve or restore the status quo, not to give the plaintiff his remedy, until trial.

[35]            In the present case, it is important to note that the Minister of National Defence's decision to extend the compulsory retirement age for all members of the Canadian forces to 60 years of age, is not an acknowledgement that the current compulsory retirement regime is unconstitutional. The respondents argue that the new retirement regime is an attempt to take advantage of the skills and experience of military personnel before they retire, and is a response to changing demographics. In my view, the constitutionality of the current mandatory retirement regime needs to be determined following a full hearing and after the parties have had the opportunity to present all the appropriate evidence.

[36]            Further, granting the stay raises concerns regarding the validity of the courts martial presided over by the applicant after July 3, 2003 pending the determination on the constitutionality of the impugned provisions.

[37]            If the application is dismissed and the provisions are found to be constitutionally valid, the applicant's appointment would have expired by operation of the Act and Regulations. I believe that the court martials presided by him would be suspect because they would have been irregularly constituted.

[38]            I can also foresee the possibility of challenges to the authority of the applicant to sit as a military judge in light of the uncertainty surrounding his eligibility. This may force him to recuse himself pending the final determination of the issue.

[39]            In such a case, the two other military judges would have to hear the additional burden caused by the ineligibility of the applicant. This would create delay and go against the expeditious process required by the maintenance of discipline in the Canadian forces.

[40]            I am satisfied that the balance of convenience favours the respondents.

[41]            For these reasons, I am of the opinion that the public interest in the proper administration of justice militates against granting the stay.

[42]            The motion is dismissed without costs.

                                                  ORDER

THIS COURT ORDERS that the motion is dismissed without costs.

                                                                      "Danièle Tremblay-Lamer"

J.F.C.C.

                             FEDERAL COURT OF CANADA

                                          TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                        T-954-03

STYLE OF CAUSE:                      COMMANDER JAMES PRICE

v.

ATTORNEY GENERAL OF CANADA,

MINISTER OF NATIONAL DEFENCE and

CHIEF OF THE DEFENCE STAFF

PLACE OF HEARING:                 Ottawa, Ontario

DATE OF HEARING:                   June 17, 2003

REASONS FOR ORDER

AND ORDER OF                         The Honourable Madam Justice Tremblay-Lamer

DATED:                                           June 19, 2003

APPEARANCES:

MR. MICHAEL PHELAN FOR THE APPLICANT

MS. TINA HILL

MR. ALAIN PRÉFONTAINEFOR THE RESPONDENTS

MS. ELIZABETH RICHARDS

SOLICITORS ON THE RECORD:

OGILVY RENAULT FOR THE APPLICANT

OTTAWA, ONTARIO

MR. MORRIS ROSENBERGFOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA