Date: 20000229
Docket: T-1905-96
BETWEEN:
MALCOM BARON,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER
DAWSON J.
[1] The defendant has moved for summary judgment seeking the dismissal of the plaintiff's claim on the ground that it is statute barred by virtue of the operation of subsection 269(1) of the National Defence Act.
[2] In support of its motion the defendant relied upon the admissions contained in the pleadings. In opposition to the motion, the plaintiff sought to rely on the affidavit of Blair Crew, an articling student with the firm of solicitors representing the plaintiff. Through what I was advised was inadvertence, this affidavit was not filed within the time directed by order of Prothonotary Aronovitch. On the return of the motion the defendant did not urge that either serious prejudice or undue delay would be occasioned if the affidavit was received. Accordingly, I gave leave for the late filing of the affidavit.
The facts
[3] At all material times the plaintiff was a member of the Canadian Armed Forces. It is admitted that during the period from May 25th, 1995 to November 28th, 1995, as a result of a number of complaints made by the plaintiff's spouse to the military police or others, the plaintiff was arrested on 6 separate occasions by the military police and charged with various criminal offenses. As a result of those arrests, the plaintiff was held in custody for a total of approximately 10 days. By November 28th, 1995, all of the criminal charges were disposed of. The plaintiff entered a plea of guilty to one charge of possession of a prohibited weapon and the balance of the charges were withdrawn.
[4] On August 21st, 1996, the statement of claim was issued by the plaintiff in which he alleged negligence, wrongful arrest and detention, and intentional interference with economic relations. The plaintiff also advanced a claim pursuant to section 9 and subsection 24(1) of the Canadian Charter of Rights and Freedoms (the "Charter"). Subsequently an amended statement of claim was filed which, inter alia, removed the claim for intentional interference with economic relations.
The issue and the arguments
[5] At issue in this motion is whether or not the plaintiff's claim, filed on August 21st, 1996, is barred pursuant to subsection 269(1) of the National Defence Act (the "Act") which provides:
| 269. (1) No action, prosecution or other proceeding lies against any person for an act done in pursuance or execution or intended execution of this Act or any regulations or military or departmental duty or authority, or in respect of any alleged neglect or default in the execution of this Act, regulations or any such duty or authority, unless it is commenced within six months after the act, neglect or default complained of or, in the case of continuance of injury or damage, within six months after the ceasing thereof.
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269. (1) Les actions pour un acte accompli en exécution " ou en vue de l'application " de la présente loi, de ses règlements, ou de toute fonction ou autorité militaire ou ministérielle, ou pour une prétendue négligence ou faute à cet égard, se prescrivent par six mois à compter de l'acte, la négligence ou la faute en question ou, dans le cas d'un préjudice ou dommage, par six mois à compter de sa cessation.
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(i) The defendant's position
[6] In support of its motion for summary judgment, the defendant asserts that the whole of the plaintiff's claim arises out of the arrests and detentions which were completed by November 28th, 1995. Reliance is placed upon the manner in which the plaintiff framed his claim in paragraphs 4 and 20 of the amended statement of claim, which provide as follows:
| 4. The Plaintiff claims for negligence, wrongful arrest and detention. The Plaintiff also claims pursuant to sections 9 and 24(1) of the Canadian Charter of Rights and Freedoms ("Charter"). |
| 20. The Plaintiff claims for negligence, wrongful arrest and detention, and a breach of his rights pursuant to s. 9 of the Charter, the particulars of which are as follows: |
| (a) the military police failed to or wilfully chose not to compile a history of the false complaints and retractions by the Plaintiff's spouse; |
| (b) the military police failed to or wilfully chose not to follow up on the history of false complaints and retractions made by the Plaintiff's spouse; |
| (c) in the alternative, knowing of the history of the false complaints and retractions made by his spouse, the military police continued to arrest and detain the Plaintiff; |
| (d) the military police failed to take into account or alternatively, took into account, improperly, the complete unreliability of the Plaintiff's spouse; |
| (e) the military police had no reasonable and probable grounds to arrest the Plaintiff; |
| (f) the military police had no grounds to detain the Plaintiff and therefore, the Plaintiff was arbitrarily detained. |
[7] The defendant acknowledges that subsequent paragraphs in the amended statement of claim, particularly paragraphs 29 and 30, reference claims for compensation which relate to post November 28th, 1995 events, but says that no separate claim is advanced in either contract or tort for that loss and that in essence everything the plaintiff complains of flows from the allegedly false arrests which had ended by November 28th, 1995.
[8] The defendant states that this is not a case for any application of the discoverability rule because on the evidence before the Court this is not a case where there was discovery at a later date of material facts. The defendant also asserts that this is not a case of continuing injury or damage, as contemplated by subsection 269(1) of the Act.
[9] Finally, to the extent that the plaintiff asserts that an action for breach of a Charter right cannot be barred by virtue of the operation of subsection 269(1) of the Act, the defendant relies upon the decision of this Court in St-Onge v. Canada, [1999] A.C.F. No. 1842, which the defendant states is authority for the proposition that the plaintiff's claim pursuant to the Charter ought to be subject to the same prescriptions which the Court finds to be applicable to the tort claim.
(ii) The plaintiff's position
[10] The plaintiff asserts that the statement of claim was issued within the limitation period. He relies upon the facts and matters alleged in paragraphs 23, 24 and 25 of the amended statement of claim which provide:
| 23. As a result of the actions/omissions by the Defendant's agents, the Plaintiff had been suspended, without pay, from his employment for approximately 4 months. Upon his re-instatement he was provided with his back pay. |
| 24. Despite the fact that all matters in the criminal courts had been resolved by November 28, 1995, in or about December 1995, the Plaintiff was advised that he had been recommended for release from the Canadian Forces for the following reasons: |
| (a) conduct unbecoming an officer in the Canadian Armed Forces; and |
| (b) being an administrative burden to his unit. |
| 25. The reasons given by the Canadian Armed Forces for this recommendation were that: |
| (a) due to the numerous arrests by the Military Police and his incarcerations, the Plaintiff's job performance allegedly declined to a point where it was considered unsatisfactory; |
| (b) the Plaintiff displayed a lack of judgment by leaving the spouse (complainant in the criminal charges) without access to money for basic needs and his alleged repeated violations of court ordered conditions of release; |
| (c) the Plaintiff was guilty of unsatisfactory conduct, either socially or on duty, in a way which brought discredit to the Canadian Forces; and |
| (d) the Plaintiff was guilty of a behaviour pattern that caused an excessive administrative burden because of disciplinary problems. |
[11] The plaintiff says that in response to the suspension and recommendation for release he submitted a document entitled "Redress of Grievance" on January 4th, 1996, a "Request for Trial by Court Martial" on January 26th, 1996 and a further document entitled "Application for Redress for Grievance" on March 5th, 1996. He received responsive correspondence dated February 5th, 1996, February 8th, 1996 and March 15th, 1996.
[12] In response to the motion for summary judgment the plaintiff submits that the suspension and recommendation for release are linked to the original acts of arrest and detention but that they constitute separate wrongful and actionable conduct. The plaintiff says that in effect the military authorities were "not willing to let the matter go" and continued to engage in wrongful conduct towards him. Further, the plaintiff says that it was not until March 15th, 1996 that he knew that he was not going to be released from the Canadian Armed Forces as had been recommended. Accordingly, he asserts, to use the words of subsection 269(1) of the Act, that until that date the "neglect or default complained of" continued and that the statement of claim was filed within six months of that date.
[13] The plaintiff says, in any event, that the question as to whether or not the action was commenced within the limitation period is a genuine issue which should not be resolved on this motion for judgment.
[14] Finally, the plaintiff says that an action which alleges breach of a Charter right cannot be barred by virtue of subsection 269(1) of the Act.
Analysis
(i) Was the statement of claim issued within the limitation period?
[15] For the purpose of this motion, counsel agree that the general rule set out by the Supreme Court of Canada in Central Trust Company v. Rafuse, [1986] 2 S.C.R. 147 at p. 224, applies:
| . . . a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence. |
[16] There is no dispute between the parties, as reflected in the admissions contained in the pleadings, that by November 28th, 1995 all of the allegedly wrongful acts of arrest and detention were at an end. Absent any other facts material to the cause of action sued upon occurring after that and within the six month period prescribed by subsection 269(1) of the Act, it is clear that the action was not commenced within the time required by the Act.
[17] Plaintiff's counsel, however, argues forcefully that because the plaintiff did not receive a final response to his Application for Redress of Grievance until March 15th, 1996, the defendant's conduct giving rise to the cause of action, and the damages suffered by the plaintiff, continued until at least March 15th, 1996.
[18] There are, with respect, a number of difficulties with this submission.
[19] First, I cannot accept that any action on the part of the defendant, either in suspending the plaintiff without pay or in recommending the plaintiff for release from the Canadian Armed Forces, is material to the cause of action pleaded by the plaintiff. That cause of action is clearly particularized in paragraph 20 of the amended statement of claim to relate solely to actions on the part of the military police, not to the actions of other officers involved in decisions regarding suspension and the recommendation for release.
[20] Secondly, it is not disputed that the plaintiff knew of both the suspension without pay and the recommendation for release by no later than November 4th, 1995. To the extent that knowledge of these two events, which are alleged to have flowed from the arrest and detention, was material, the plaintiff was in possession of that knowledge more than six months prior to the issuance of the claim.
[21] The only events in evidence before the Court relating to the suspension or the recommendation for release which took place within six months of the issuance of the claim were the submission of the plaintiff's Application for Redress of Grievance on March 5th, 1996 (Exhibit C to the affidavit of Blair Crew) and receipt of the defendant's "Redress of Grievance" dated March 15th, 1996 (Exhibit F to the affidavit of Blair Crew). The latter document advised the plaintiff that on March 7th, 1996 the decision had been made to rescind the suspension without pay imposed on him.
[22] Neither submission of the Application for Redress of Grievance nor provision of the defendant's "Redress of Grievance" is, in my view, a material fact on which the plaintiff's claim is based. In consequence, it cannot be concluded that the plaintiff's cause of action did not arise until the discovery of either event.
[23] Finally, rule 215 of the Federal Court Rules, 1998 requires that:
| 215. A response to a motion for summary judgment shall not rest merely on allegations or denials of the pleadings of the moving party, but must set out specific facts showing that there is a genuine issue for trial.
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215. La réponse à une requête en jugement sommaire ne peut être fondée uniquement sur les allégations ou les dénégations contenues dans les actes de procédure déposés par le requérant. Elle doit plutôt énoncer les faits précis démontrant l'existence d'une véritable question litigieuse.
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[24] It is settled law that a party responding to a motion for summary judgment must put their "best foot forward" at the time the motion is heard by filing an affidavit or other evidence demonstrating that there is a genuine issue for trial: Wall v. Brunell, (1997), 75 C.P.R. (3d) 429 (F.T.D.).
[25] While the plaintiff alleges in paragraphs 23, 24 and 25 of his amended statement of claim that the suspension and recommendation for release were as a result of or related to the acts or omissions of the military police, the evidence is far from clear that the matters which led to the suspension and recommendation for release were related to or flowed from the allegedly wrongful arrest and detention. The defendant asserted in paragraph 4 of its amended statement of defence that the suspension was in respect of conduct not related to the allegations which had led to the arrest and detention of the plaintiff.
[26] Faced with that issue, the plaintiff, in response to the defendant's motion for summary judgment, failed to put his own evidence before the Court by way of an affidavit sworn by the plaintiff. Instead, an affidavit was sworn by an articling student which essentially identified certain documents which passed between the plaintiff and the defendant. Exhibit A to that affidavit, identified as the plaintiff's Application for Redress of Grievance, is wholly consistent with the position taken by the defendant in paragraph 4 of its amended statement of defence that the suspension without pay was in connection with an investigation unrelated to the matters which had resulted in the arrest and detention.
[27] It is true that Exhibit D to the affidavit of Blair Crew, which is correspondence dated February 5th, 1996 to the plaintiff from the Commandant of the Canadian Forces Support Unit in Ottawa in response to the plaintiff's request for trial by court martial, does appear to relate to the plaintiff's arrest and detention in that it references matters which "have been dealt with by the civilian jurisdiction in which they occurred". However, there is nothing in the March correspondence relied upon by the plaintiff which clearly relates to the arrest and detention so as to be capable, in my view, of constituting facts material to the plaintiff's cause of action.
[28] In the result I am not satisfied that the plaintiff met the requirement when faced with the motion for summary judgment to set out in evidence facts establishing that there is a genuine issue for trial as to whether the statement of claim was issued within the limitation period.
[29] Notwithstanding the forceful argument of plaintiff's counsel to the contrary, I am satisfied upon the evidence before the Court that there is no genuine issue for trial as to when the cause of action accrued and I am satisfied that the action was not commenced within the time frame required by subsection 269(1) of the Act. It remains to consider the plaintiff's argument that such provision is not effective to bar that portion of the plaintiff's claim which "claims pursuant to sections 9 and 24(1) of the Canadian Charter of Rights and Freedoms".
(ii) Is subsection 269(1) of the National Defence Act effective to bar an action for breach of a Charter right?
[30] In K.M. v. H.M., [1992] 3 S.C.R. 6, at 59 and 60, Justice La Forest, for the majority of the Court, expressly contemplated that conduct could give rise to two causes of action (in that case claims in tort and for breach of fiduciary duty) in circumstances where one cause of action might be barred by a limitation statute while the other was not.
[31] Therefore, it is necessary to consider whether, if the prescription provision of the Act bars the claim in tort, the plaintiff's claim for relief under the Charter survives.
[32] The plaintiff asks this Court to find, in the circumstances, that subsection 269(1) of the Act is non-operative or inoperative. In support of the substantive argument, the plaintiff relies upon the decision of the Ontario Court of Appeal in Prete v. Ontario (Attorney General), (1993), 86 C.C.C. (3d) 442, while in support of the suggested procedure to find subsection 269(1) inoperative he relies upon the decision of the Federal Court of Appeal in Re Kaur v. Minister of Employment and Immigration, (1989), 64 D.L.R. (4th) 317.
[33] The difficulty with such submission is that Kaur was decided before the enactment of section 57 of the Federal Court Act which provides in subsection (1):
| 57. (1) Where the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).
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57. (1) Les lois fédérales ou provinciales ou leurs textes d'application, dont la validité, l'applicabilité ou l'effet, sur le plan constitutionnel, est en cause devant la Cour ou un office fédéral, sauf s'il s'agit d'un tribunal militaire au sens de la Loi sur la défense nationale, ne peuvent être déclarés invalides, inapplicables ou sans effet, à moins que le procureur général du Canada et ceux des provinces n'aient été avisés conformément au paragraphe (2).
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Notice under section 57 of the Federal Court Act was not given.
[34] The plaintiff's submission squarely raises the question of the operability of subsection 269(1) of the Act where the underlying action is based on an alleged violation of a Charter right. I cannot decide that issue in circumstances where notice has not been given pursuant to section 57 of the Federal Court Act.
[35] As to how the issue of the operability of subsection 269(1) in the circumstances should be determined, the issue is not free of doubt. I do not agree that the decision of this Court in St-Onge, supra, stands for the proposition asserted by the defendant. Rather, the Court stated:
| . . . Puisque l'action du demandeur n'a été intentée qu'en mai 1990, soit plus de six ans après le refus du CEC de continuer à fournir des services au demandeur, il n'est pas nécessaire d'étudier la question, controversée dans la jurisprudence, à savoir si une courte prescription provinciale est efficace à l'encontre d'une réclamation basée sur la prétendue violation d'un droit garanti par la Charte. |
The decision of the Court was premised on the fact that it was unnecessary to consider the effect of the short six-month prescription because the action was commenced outside the general six-year prescription which applied to all actions in tort.
[36] In view of the doubt which surrounds the substantive issue I am not satisfied that a proper evidentiary basis is before the Court to allow the proper adjudication of the question. Further evidence will be required.
[37] In the result the defendant is entitled to judgment dismissing all of the claims advanced by the plaintiff except the plaintiff's claim pursuant to section 9 and subsection 24(1) of the Charter.
[38] In the circumstances I think it proper to reserve the decision as to the costs of this motion to the judge who presides over the ultimate determination of the action.
_________________________
Judge
Ottawa, Ontario
February 29, 2000
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