Canada v. Néron, 2005 FC 1559

Date:  20051118

Docket:  T-617-05

Citation:  2005 FC 1559

Montréal, Quebec, November 18, 2005

PRESENT:                 RICHARD MORNEAU, PROTHONOTARY

BETWEEN:

                              HER MAJESTY THE QUEEN IN RIGHT OF CANADA

                                                                                                                                              Plaintiff/

                                                                                                                Defendant to counterclaim

                                                                           and

                                                            STÉPHANE NÉRON

                                                                                                                                          Defendant/

                                                                                                                    Plaintiff by counterclaim

                                            REASONS FOR ORDER AND ORDER

[1]               UPON the motion by the plaintiff and defendant to counterclaim (the plaintiff) to obtain an order dismissing with costs the defendant’s amended counterclaim and striking paragraphs 2.1 to 2.4, 5.1 to 5.5, 6.2, 7.1 to 7.21, 7.23, 7.24, 24, 25, 26 and 27 of the amended defence;

[2]               WHEREAS the motion relies expressly on paragraphs 221(1)(a) and (f) of the Federal Courts Rules (the Rules) and implicitly on section 208 and paragraphs 298(2)(a) and (b) of the Rules;

[3]               UPON reading and examining the motion records submitted by the parties in the present motion;

[4]               WHEREAS it was conceivable and appropriate for the plaintiff to submit the present motion before advancing further in the matter;

-           Concerning the Defendant’s Amended Counterclaim (the Claim)

[5]               WHEREAS this Claim consists essentially of subparagraphs 30(a) to (h);

[6]               WHEREAS, for the following reasons, elaborated upon further by the plaintiff in the motion record, these subparagraphs of the Claim should be struck out:

-           concerning subparagraphs 30(a), (b), (d), (e), (f) and (h), it is correct to assume that the defendant’s failure to use the internal process for redress provided under section 29 of the  National Defence Act, R.S.C. 1985, c. N-5, as amended, cannot result in giving this court jurisdiction to address these grievances indirectly as a negligence action (see Vaughan v. Canada, [2005] 1 S.C.R. 146);

-           concerning subparagraphs 30(b), (e), (g) and (h), the claims expressed therein are  prescribed under section 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (the Liability Act) and articles 2880, 2925 and 2926 of the Civil Code of Québec;

-           concerning subparagraphs 30(a) and ( c), the claims expressed therein are also premature in light of section 111 of the Pension Act, R.S.C. 1985, c. P-6 and section 9 of the Liability Act.

-           Concerning the Defendant’s Amended Defence (the Defence)

[7]               Concerning paragraphs 2.1 to 2.4, 5.1 to 5.5, 6.2, 7.1 to 7.21, 7.23, 7.24, 24, 25, 26 and 27 of the Defence, the Court finds that all those paragraphs relate to events that were, or could have been, the subject of a grievance under section 29 of the National Defence Act.  This Court has no jurisdiction to grant any remedy whatsoever concerning such events, since the defendant failed to file a grievance or apply for judicial review, where appropriate.

[8]               Furthermore, these paragraphs cannot be considered material and relevant to the facts alleged in the plaintiff’s statement of claim.

[9]               Consequently, the Court:

ALLOWS the present motion by the plaintiff, with costs;

STRIKES OUT the defendant’s amended counterclaim, as well as paragraphs 2.1 to 2.4, 5.1 to 5.5, 6.2, 7.1 to 7.21, 7.23, 7.24, 24, 25, 26 and 27 of the amended Defence;

EXTENDS the plaintiff’s time for serving and filing a reply until December 2, 2005.

Certified true translation

Michael Palles

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-617-05

HER MAJESTY THE QUEEN IN RIGHT OF CANADA

                                 Plaintiff/Defendant to counterclaim

and

STÉPHANE NÉRON

                                Defendant/Plaintiff by counterclaim

PLACE OF HEARING:                                Montréal, Quebec

DATE OF HEARING:                                  November 7, 2005

REASONS FOR ORDER BY:                     Richard Morneau, Prothonotary

DATED:                                                         November 18, 2005

APPEARANCES:

SOLICITORS OF RECORD: