Tremblay v. Canada, 2003 FC 1204

Date: 20031017

Docket: T-541-02

Citation: 2003 FC 1204

Between:

ANDRÉ TREMBLAY

Plaintiff

And:

HER MAJESTY THE QUEEN

and

THE ATTORNEY GENERAL OF CANADA

Defendants

REASONS FOR ORDER

ROULEAU J.

[1]        The Court has before it an appeal from an order by the prothonotary Morneau on November 1, 2002, dismissing the motion to strike the plaintiff's action filed by the defendants.

[2]        The plaintiff was a member of the Canadian Armed Forces ("the Forces") from January 1, 1962 to October 9, 1969, and from September 28, 1991 to March 31, 1999. The last date is the day on which he was placed on retirement by the Forces due to the compulsory retirement age contained in the Queen's Orders for the Canadian Forces ("the Queen's Orders").

[3]        On March 28, 2002, the plaintiff filed his statement of claim, seeking several remedies.

[4]        On April 25, 2002, the defendants filed a motion to strike. After the hearing of this motion the prothonotary, on July 7, 2002, ordered that the plaintiff file a new amended statement of claim. On July 29, 2002, the plaintiff accordingly filed an amended statement of claim in which he asked the Court to order he be reinstated in his employment, to order compensation for the salary which he lost and to rule that the provisions of the Queen's Orders on compulsory retirement age and paragraph 15(1)(b) and (c) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, were contrary to sections 1 and 15 of the Canadian Charter of Rights and Freedoms [Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11], and so of no force or effect.

[5]        On September 26, 2002, the defendants filed a motion to strike the amended action, which was heard on October 21, 2002.

[6]        In his decision dated November 1, 2002, the prothonotary dismissed the first ground for striking submitted by the defendants, namely that the plaintiff's action was prescribed on the date it was filed in view of the fact that the six-month deadline stipulated in subsection 269(1) of the National Defence Act, R.S.C. 1985, c. N-5 (hereinafter "NDA") had expired. The prothonotary instead adopted the approach suggested by the plaintiff:

According to the plaintiff, his action is directly against the Crown for legislative acts and not indirectly for the acts of an official. Consistent with this approach, it is alleged that the courts, and in particular the decision of the Superior Court of Quebec in Michel Boulay v. Procureur général du Canada (an unreported judgment delivered March 2, 1995, S.C. docket 500-05-012934-947) (the Boulay decision), combined with the Scaglione decision, supra, hold that the Crown cannot avail itself of the limitation period in subsection 269(1) when it is sued directly, and that furthermore, in circumstances such as these, paragraph 24(a) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, as amended, is not available to allow the Crown to benefit indirectly from the limitation period in subsection 269(1).

[7]        The second ground for striking out submitted by the defendants, namely that the plaintiff should present his conclusions seeking a declaration of no force or effect and reinstatement as part of an application for judicial review, not as part of an action, was also reviewed and dismissed by the prothonotary.

[8]        The relevant questions are the following:

1.         Did the prothonotary err regarding prescription of the plaintiff's action?

2.         Did the prothonotary exceed his jurisdiction by ordering the plaintiff to file a reamended statement of claim?

3.         Did the prothonotary err in deciding that the plaintiff should proceed by statement of claim rather than by judicial review?

[9]        In Canada v. Aqua-Gem Investments Ltd. (C.A.), [1993] 2 F.C. 425, it was established that the Court should not intervene in a prothonotary's discretionary decisions except (a) when they are obviously wrong, in that the exercise of discretion by the prothonotary was based on a wrong principle or a misapprehension of the facts, or (b) when the prothonotary improperly exercised his discretion on a question vital to the outcome of the case. In such a case, the Court is not bound by the prothonotary's opinion and will retry the matter de novo, exercising its own discretion.

1.         Did the prothonotary err regarding prescription of the plaintiff's action?

[10]      The prothonotary found that subsection 269(1) of the NDA was inapplicable in the case at bar since the plaintiff's action was directed at the Crown for legislative acts, not indirectly for the actions of a Crown employee. In view of the precedents, I consider this conclusion is correct.

[11]      Contrary to what the defendants argued, the prothonotary did not find that section 269 of the NDA was of no force or effect, just that it was inapplicable. In any case, it is worth noting that it was the defendants who relied on section 269, not the plaintiff.

[12]      The defendants' representative also argued that the prothonotary erred in his interpretation of section 269 of the NDA. He maintained that the actual wording of subsection 269(1) of the NDA provides that that section can be relied on in many circumstances, not just in cases of neglect or default on the part of Crown employees:

Since this action arises from the implementation of NDA regulations, namely the regulations dealing with retirement of the plaintiff, it is prescribed six months after the retirement.

[13]      In the case at bar the plaintiff blamed the legislation itself, not the act of any person. In fact, the plaintiff acknowledged that the entire procedure was carried out in accordance with the NDA. Further, it is true that the government can rely on paragraph 24(a) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, but only if the government was sued for the fault of a person covered by subsection 269(1) of the NDA. The government cannot appropriate defences of persons who are not covered by the action.

[14]      In my view, the prothonotary's discretionary analysis was grounded on correct principles and it was reasonable for him to conclude that the situation in the case at bar is different from that existing in Scaglione v. McLean, [1998] O.J. No. 800, and that the defendants cannot rely on subsection 269(1) of the NDA via paragraph 24(a) of the Crown Liability and Proceedings Act.

2.         Did the prothonotary exceed his jurisdiction by ordering the plaintiff to file a reamended statement of claim?

[15]      The defendants maintain that the prothonotary exceeded his jurisdiction by ordering the plaintiff to file a reamended statement of claim, so that the latter could specifically identify in his statement of claim the various remedies sought by his action, without any motion being filed to that effect.

[16]      In my view, this order by the prothonotary arises from his conclusion on the third point at issue, namely that the case should proceed by action and not by judicial review. I will therefore address the next question first.

3.         Did the prothonotary err in deciding that the plaintiff should proceed by statement of claim rather than by judicial review?

[17]      In his decision, the prothonotary indicated that it was clear that even before claiming compensation and reinstatement, the plaintiff should first have obtained rulings that the legislation was of no force or effect. The prothonotary found that in the circumstances findings of invalidity directed against legislation could be obtained by an action. He came to this conclusion by finding [TRANSLATION] "it is well-settled case law that the Crown is not a 'federal board, commission or other tribunal'" and that [TRANSLATION] "further, section 2 of the Federal Court Act, R.S.C. 1985, c. F-7, defines the word 'relief' as including a declaration. Under subsection 17(1) and paragraph 48 of that Act, an application against the Crown for a declaration is instituted by action".

[18]      Although the plaintiff's application for reinstatement is a remedy which may be obtained by an application for judicial review, it did not seem proper to the prothonotary for him to strike out this remedy. He found that the plaintiff's first remedies are more in the nature of an action, the application for reinstatement could be decided after the principal issue had been resolved and the Court could dispose of it on the merits in disposing of the action. In this regard, he relied on the remarks of Décary J.A. of the Federal Court of Appeal in Sweet et al. v. Canada (1999), 249 N.R. 17, at 25 and 26:

[14] . . . Once it is ascertained that a given proceeding falls into one or the other of the two categories (judicial review and action), the duty of the Court is to determine which is the applicable category and to allow the proceeding to continue in that way. Means must be found by counsel and by the Court to address the issue intelligently and with a sense of practicality.

. . . . .

[17] It seems to me that in a case where many different sorts of relief are claimed, some of which require an action and some of which require judicial review, the proper course is to determine which relief it makes more sense to decide first, then to determine whether the procedure taken is the proper one with respect to that relief and, if not, to allow the party to correct it with appropriate amendments.

[19]      The defendants argued that the prothonotary erred in ordering that this should be the procedure. He alleged that in fact this Court has many times decided that an application for a declaratory judgment should be made by an application for judicial review and not by a declaration, even in constitutional matters. I think the precedents cited by the defendants must be reviewed in order to clarify the point.

[20]      In Raza v. Canada, [1999] 2 F.C. 185, Muldoon J. had to decide whether, in an application for judicial review, the Court could consider the validity of a legislative provision. He held that under subsection 18.1(4) of the Federal Court Act, the Court had such authority and the plaintiff was not required to proceed by declaration.

[21]      In Sivaraj v. Canada (1996), 107 F.T.R. 64, at paragraphs 5 and 6, Tremblay-Lamer J. made the following comments:

In their statements of claim, the applicants seek declaratory relief that the Minister's decision to remove the applicants to Sri Lanka violates the Charter. They argue that the only proper recourse for them is by way of action since under judicial review this court could not examine the Charter.

I must disagree with that assertion. Unlike the facts in Tétreault-Gadoury, the Minister in this case was not asked to find a provision of the Act unconstitutional. If that were the situation,and if the enabling statute did not permit the federal board to determine the constitutionality of provisions of the Act, then it would be true that this court would not have the jurisdiction on judicial review to entertain such a request for relief but could only examine it under an action. Those are not the circumstances before me.

[22]      A contrario, these two cases may be interpreted as allowing the possibility of proceeding by declaration to obtain a declaratory judgment. Further, in Chesters v. Canada (M.C.I.) (1997), 134 F.T.R. 151, Prothonotary Giles concluded as follows:

Dealing with declarations of the nature of that in subparagraph (a), I note, they would declare the legislation void. Subparagraph (a) does not on its face involve any federal board, commission or other tribunal. This type of declaration must be distinguished from the declaration mentioned in section 18 of the Federal Court Act, if for no other reason than that it is beyond the powers of the central government to give exclusive jurisdiction to the Federal Court, the provincial courts having also the right to declare legislation ultra vires or find that it offends the Charter. In addition, such a declaration is not on its face impugning a decision of any federal board, commission or other tribunal. It is impugning legislation of Parliament. I find that a declaration of this type may be sought in an action. Subparagraph (b), as earlier indicated, involves impugning the decision of a board, commission or other tribunal and should rightly be sought only in judicial review proceedings.

In my view, subparagraphs (b) and (c) of the prayer for relief must be struck out. Subparagraphs (a) and (d) can properly remain in an action to declare the legislation void and for damages (the "damage action"). . .

[23]      The prothonotary may not have relied on these precedents, but he did to some extent adopt the same rule when he found that as the Crown was not a "federal board, commission or other tribunal", it was not covered by section 18 of the Federal Court Act.

[24]      In view of the precedents cited above and the approach taken by the prothonotary, it is impossible for the Court to conclude that he exercised his discretion improperly.

[25]      I therefore dismiss this appeal from Prothonotary Morneau's decision in this matter.

[26]      Subsection 39(1) of the Federal Court Act provides that provincial prescription deadlines are to apply in any proceeding in the Court, unless applicable federal legislation on the point exists. In the case at bar it is clear, in view of the unambiguous wording of subsection 269(1) of the National Defence Act and the related precedents which have developed, that it does not apply to the facts of the case at bar. Consequently, the applicable prescription deadline is that of the province of Quebec and the plaintiff's action was brought before that prescription deadline expired.

[27]      However, I do not subscribe to the prothonotary's directions regarding the future handling of the case at bar. Mr. Tremblay is challenging the constitutionality of federal legislation, and so he must comply with the requirements stated in section 57 of the Federal Court Act.

[28]      Consequently, it is hereby ordered that the plaintiff shall prepare his record in accordance with the requirements of Rules 60 to 71 of the Federal Court Rules.

[29]      It is further ordered that the plaintiff's record shall contain a concise summary of the facts, a list of the sections of the Act at issue in the case, an account of the points at issue, a precise summary of the arguments and a list of precedents. The record shall further contain in an appendix copies of the legislation, regulations, precedents and academic commentary in support of the claimant's application.

[30]      It is further ordered that the plaintiff shall serve his record on the defendants and shall file it in Court within 30 days of the date of this order.

[31]      It is further ordered that the defendants shall have 60 days from the date of service of the plaintiff's record to prepare, file and serve their record in reply.

[32]      Notwithstanding subsection 57(2), the plaintiff must comply with subsection 57(1) before a hearing date is fixed.

[33]      Costs in the cause.

OTTAWA, Ontario

October 17, 2003

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                       FEDERAL COURT

                                SOLICITORS OF RECORD

DOCKET:                                                                        T-541-02

STYLE OF CAUSE:                                                     ANDRÉ TREMBLAY

Plaintiff

AND

HER MAJESTY THE QUEEN AND

THE ATTORNEY GENERAL OF CANADA

Defendants

PLACE OF HEARING:                                                MONTRÉAL

DATE OF HEARING:                                                  September 15, 2003

REASONS FOR ORDER BY:                                    ROULEAU J.

DATE OF REASONS:                                                  October 17, 2003

APPEARANCES:

Alain Tremblay                                                                  FOR THE PLAINTIFF

Chantal Sauriol                                                                  FOR THE DEFENDANT

Marie-Ève Sirois-Vaillancourt

SOLICITORS OF RECORD:

Alain Tremblay                                                                  FOR THE PLAINTIFF

Montréal, Quebec

Chantal Sauriol                                                                  FOR THE DEFENDANT

Marie-Ève Sirois-Vaillancourt