Date: 20011120
Docket: T-2092-98
Neutral citation: 2001 FCT 1270
BETWEEN:
JOHN TRUDGIAN
Plaintiff
and
HER MAJESTY THE QUEEN
IN THE RIGHT OF CANADA
Defendant
REASONS FOR ORDER
GIBSON J.
Background
[1] In September of 1996, the plaintiff took a six-month leave of absence from his employment with the Corrections Branch of the British Columbia Ministry of the Attorney General to pursue an opportunity to attend the Royal Canadian Mounted Police ("RCMP") Cadet Training Program at the RCMP Training Academy (the "Academy") in, or close to, Regina, Saskatchewan. He did so at considerable personal and economic sacrifice, presumably in anticipation of future satisfaction and career and economic advancement flowing from employment with the RCMP.
[2] On the 30th of September, 1996, the plaintiff signed a Royal Canadian Mounted Police Cadet Training Agreement (the "Agreement") which included the following provisions:
...
2. Upon successful completion of this program, the Cadet will be engaged as a regular member of the Royal Canadian Mounted Police. Under exceptional circumstances, the Cadet may be engaged only as appropriate positions become available. The location of employment will be determined by the RCMP to meet the needs of the organization.
3. Until such time as an offer of engagement is made and accepted, the Cadet will be neither a member of the Royal Canadian Mounted Police, nor an employee of the Government of Canada.
...
F. Termination of Agreement
...
2. If the Cadet is charged with a criminal or quasi-criminal offence and
a. is attending the Cadet Training Program at the RCMP Training Academy, the Training Officer of the RCMP Training Academy may terminate this Agreement; or
...
[emphasis added]
Under the headings "CADET RESPONSIBILITIES" and "Academic and Performance", the Agreement continues:
1. The Cadet is required to maintain the RCMP Cadet Standards of Performance and Conduct in order to continue with the Language, Developmental or Cadet Training Program. Failure to meet these requirements will result in the cancellation of this Agreement and the Royal Canadian Mounted Police will not thereafter be under any legal or other obligation to the Cadet save as expressly set out in this Agreement.
[emphasis added]
The contrast in the language of the last two provisions of the Agreement that are quoted above will prove to be central to my disposition of this action.
[3] The plaintiff never completed the RCMP Cadet Training Program. On the 8th of December, 1996, another Cadet complained to one of the instructors or team leaders at the Academy that, in the course of a broomball game at the Academy, the plaintiff had sexually assaulted her. The team leader reported the complaint to his supervising Sergeant who in turn reported the complaint to the Regina Police Services. On the 9th of December, the plaintiff was arrested and charged with sexual assault contrary to section 271 of the Criminal Code of Canada. On the 10th of December, termination of the plaintiff's training agreement was recommended to the Cadet Training Officer. On the 11th of December, a lawyer retained by the plaintiff wrote to the Cadet Training Officer requesting for an opportunity to make submissions. On the 12th of December, an "exit interview" in relation to the plaintiff was conducted in his absence. On the 13th of December, once again a lawyer retained by the plaintiff wrote on his behalf, seeking an opportunity to make representations. The same day, the plaintiff received a Contract Termination Notice.
[4] In the result, the Statement of Claim in this action was filed on the 9th of November, 1998. It notes that the plaintiff "... was subsequently exonerated" of the allegations of sexual assault made against him. The Statement of Claim alleges that the plaintiff was subjected to humiliation and disgrace by reason of the events recounted above, that he was "... caused to be brought into ridicule and contempt" and was greatly injured in his character and reputation in a manner that will affect his future career in law enforcement agencies. He alleges that the events of December 1996 caused him to suffer considerable mental stress, anxiety and severe depression. He therefore claims general damages, special damages, aggravated damages and costs, allegedly by reason of the actions of the Royal Canadian Mounted Police in "dismissing" him.
[5] Subsequently, the action essentially transmuted into one based on breach of contract. It was also converted to a simplified action, the plaintiff having quantified his damages, in great detail, in amounts totalling $49,999.94.
Analysis
[6] As noted earlier in these reasons, the provisions of the Agreement under which the RCMP terminated the plaintiff's participation in its Cadet Training Program permitted the RCMP to terminate the Agreement; it did not, as with the provision of the same Agreement regarding failure by a Cadet to meet academic and performance requirements, simply provide for cancellation of the Agreement. Thus, once again contrasting the two provisions, I find it to be clear that the RCMP had a discretion available to it as to whether it would terminate the plaintiff's Agreement, adopt some alternative course of action, or simply take no action whatsoever.
[7] Given the discretion that I find to have been vested in the RCMP in the circumstances in which the plaintiff found himself, given the very serious implications for the plaintiff of termination of his Agreement, given the reality that the allegations made against the plaintiff were nothing more than that, simply allegations, and finally, given two requests that had been made on behalf of the plaintiff to the RCMP for an opportunity to make representations regarding the plaintiff's situation, I am satisfied that there was at least a minimal duty on the part of the RCMP to act fairly towards the plaintiff before determining the appropriate course of action in all of the circumstances.
[8] Clearly, there were conflicting interests at stake. The interests of the plaintiff have been previously mentioned. The interests of the Cadet who had recorded the complaint against the plaintiff were clearly involved as were the interests of all of the Cadets in the plaintiff's troop. Finally, the interests of the RCMP in maintaining its high reputation, including a reputation for fairness, and the efficacy of its training program were at stake.
[9] That the plaintiff had a legitimate interest in the outcome of the considerations going on within the RCMP over the few days in question did not appear to cross the mind of at least one of the RCMP officers involved in the process leading to termination. That officer, after noting that no submissions had been received from the plaintiff, but apparently not noting the request for an opportunity to make submissions or acknowledging the pressures that the plaintiff must have been under immediately after the charge was laid against him, wrote:
... I am satisfied that Cadet TRUDGIAN knew the consequences of his actions. There are no mitigating circumstances to consider in this matter.
... I feel it is not necessary for me to know the circumstances surrounding the incident which caused the Regina Police Service to charge Cadet TRUDGIAN under Section 271 of the Criminal Code. I have only to satisfy myself that Cadet TRUDGIAN has been charged and that he knew the consequences of such a criminal charge. I am satisfied he has been charged and I am satisfied he knew the circumstances of such a charge.[1]
How the officer in question knew that the plaintiff "... knew the consequences of his actions", knew there were "... no mitigating circumstances to consider in this matter" and knew that the plaintiff "knew the circumstances of such a charge", is beyond me.
[10] In Phillips v. Foothills Provincial General Hospital [2] Mr. Justice Virtue wrote:
___The plaintiff, however, complains that altogether apart from the question of procedural irregularity, the Defendant breached the rules of natural justice and fairness in the conduct of the two appeals. The plaintiff seeks to import into a breach of contract action, the standards of procedural fairness which a court will look to in a judicial review of the actions of a governmental or quasi governmental agency. While I propose to deal with counsel's submissions I do not wish to be taken as holding that the requirements applied in an application for judicial review are those which should be applied in an action for breach of a private contract.
I regard the forgoing as an appropriate cautionary message to those considering actions for breach of private contract, as here. But I also note that Mr. Justice Virtue appears to find it reasonable to find, if not explicitly, then implicitly, some obligation to act fairly in the application of contractual provisions. I regard that as particularly so in circumstances of a significant imbalance in power between the parties to a contract, such as can be found on the facts of this matter with the balance of power clearly resting with the RCMP.
[11] Mr. Justice Virtue found, on the facts before him:
___When I review the procedures followed in this case I am satisfied that Dr. Phillips' evaluation and appeals were handled fairly.
...
___If it can be said that there was a contractual duty to conduct the evaluation appeals fairly, then, in the circumstances here, that duty does not connote adherence to standards of procedure as rigorous as those found in a court of law, but rather, a standard more suitable to a process conducted, not by lawyers and judges, but by medical doctors and professors, not skilled in the niceties of legal procedures, who are charged with the responsibility of maintaining the high standards of skill and knowledge required for the practice of neurosurgery. In my view, the way in which the appeals were conducted by the medical professors and others involved, met the standard of fairness which might be said to be required by the contract in such circumstances, and accordingly I find no breach of contract in the way in which that process was conducted.
[12] The last quoted paragraph applies here, by analogy, but the facts of this matter lead me to an opposite conclusion. Like the medical doctors and professors to whom Mr. Justice Virtue refers, I take it as a given that the RCMP officers who dealt with circumstances in which the plaintiff found himself, were not skilled in the niceties of legal procedures but they were charged with the responsibility of maintaining the high standards and reputation of the RCMP. Among those standards and central to that reputation is fairness. I find nothing in the material and testimony before me that would indicate that fairness was anywhere present in the minds of those involved in the termination process.
[12] In the result, this action will be allowed.
Damages
[13] As earlier indicated in these reasons, the plaintiff presents a very detailed statement of damages under the headings loss of wages, future loss of wages, cost of training, special damages (out of pocket expenses), costs of claim, aggravated damages and punitive damages. In total, he claims $49,999.94, remarkably, or perhaps not so, just six cents below the limit for a simplified action.
[14] I reject outright the claim for aggravated damages and punitive damages. In Vorvis v. Insurance Corporation of British Columbia [3], Mr. Justice McIntyre, for the majority, wrote at page 1099:
Aggravated damages are awarded to compensate for aggravated damage. As explained by Waddams, they take account of intangible injuries and by definition will generally augment damages assessed under the general rules relating to the assessment of damages. Aggravated damages are compensatory in nature and may only be awarded for that purpose. Punitive damages, on the other hand, are punitive in nature and may only be employed in circumstances where the conduct giving the cause for complaint is of such nature that it merits punishment.
I am not satisfied that a case has here been made out for aggravated damages.
[15] Mr. Justice McIntyre wrote in relation to punitive damages at pages 1105 and 1106:
When then can punitive damages be awarded? It must never be forgotten that when awarded by a judge or a jury, a punishment is imposed upon a person by a Court by the operation of the judicial process. What is it that is punished? It surely cannot be merely conduct of which the Court disapproves, however strongly the judge may feel. Punishment may not be imposed in a civilized community without a justification in law. The only basis for the imposition of such punishment must be a finding of the commission of an actionable wrong which caused the injury complained of by the plaintiff.
I can find no "actionable wrong" on the part of the RCMP.
[16] I will not detail my analysis with respect to the other claims for damages. At the close of the hearing before me, I advised the plaintiff, who appeared on his own behalf, and counsel for the defendant, that the plaintiff would be successful, that I would make no award in respect of punitive and aggravated damages and that I proposed to make a global award in respect of all other heads of damages claimed. I invited the plaintiff and counsel for the defendant to attempt to reach agreement between themselves on what an appropriate global amount might be. They were unable to reach agreement.
[17] The plaintiff has achieved a noticeable moral victory in succeeding in this action. I am satisfied that that in itself is a significant result in his favour. I am also satisfied that his claim for damages is substantially overblown. I determine to award the plaintiff $10,000.00 as a global sum for damages.
Costs
[18] There will be no judgment or order as to costs.
(Sgd.) "Frederick E. Gibson" Judge
Vancouver, British Columbia
November 20, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2092-98
STYLE OF CAUSE: John Trudgian v. HMQ
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 15, 2001
REASONS FOR ORDER OF THE COURT BY: Gibson J.
DATED: November 20, 2001
APPEARANCES:
John Trudgian PLAINTIFF
Rodney Yamanouchi FOR DEFENDANT
SOLICITORS OF RECORD:
FOR PLAINTIFF
Deputy Attorney General of Canada FOR DEFENDANT
Department of Justice
Vancouver, British Columbia
[1]Exhibit "J" to the Affidavit of John Trudgian filed in this matter.
[2](1989), 95 A.R. 268 (Alta.Q.B.)
[3][1989], 1 S.C.R. 1085.
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