Duplessis v. Canada, docket T-294-00

Date: 20001117

Docket: T-294-00

Vancouver, British Columbia, this 17^th day of November, 2000.

PRESENT:      MADAM PROTHONOTARY ARONOVITCH

BETWEEN:

PETER DUPLESSIS

Plaintiff

- and -

HER MAJESTY THE QUEEN

Defendant

REASONS FOR ORDER

[1]      Sergeant Peter Duplessis suffers from post-traumatic stress disorder. He commenced the within action as a result of the allegedly callous and arbitrary manner in which he was treated by the Canadian Armed Forces as a returning member of various peace keeping assignments, including, most recently in Bosnia. He returned to Canada, ill and traumatised, to find indifference and even hostility rather than the aid and support he required and claims he was owed by the Armed Forces.

[2]      The Crown, as represented by the Department of National Defence and the Armed Forces, moves to strike the claim in its entirety. While it relies on a variety of grounds, the Crown's principal argument is that Mr. Duplessis' claim is to compensate him for injuries that resulted from his post-traumatic stress disorder and its aggravation; injuries in respect of which he is in receipt of a pension and is therefore precluded from claiming further against the Crown.

Facts:

[3]      The following is a summary of the salient facts drawn from Sergeant Duplessis' statement of claim. For the purposes of this motion, the facts are presumed to be true.

[4]      Sergeant Duplessis served in the Canadian military between October 27, 1977 and October 27, 1997, the date of his release. Prior to his release, he served peace keeping missions in Croatia and Bosnia, in 1992, where he experienced traumatic conditions during his official duties.

[5]      On his return from these missions, Sergeant Duplessis suffered from a variety of stress-related symptoms, including a feeling of isolation, anxiety, lack of concentration, aggressiveness, nightmares, insomnia and physical symptoms including loss of appetite. Some of these symptoms were recorded in part in his 1993-94 Performance Evaluation Reports. He repeatedly requested assistance from his superiors and medical personnel, but received no debriefing, counselling, treatment or assistance.

[6]      In 1995 to 1996, Sergeant Duplessis' health continued to deteriorate and he continued to seek medical counselling and support. Rather than resulting in support, his requests apparently created an inhospitable attitude among his superiors who considered him to be a troublemaker. Sergeant Duplessis claims that the response of his superiors was discriminatory, based on his Afro-Canadian descent and on the psychological nature of his injuries. Eventually, through his own efforts, Sergeant Duplessis managed to receive some treatment through a civilian social worker hired by the Armed Forces. He was then referred to a military psychiatrist. However, his treatment was considered unsuccessful and his superiors discouraged his trips to Toronto.

[7]      Sergeant Duplessis then decided to circumvent his immediate superiors, in effect breaking the chain of command. He sought assistance directly through the base commander, who referred him to a civilian psychologist in July 1997 and then a civilian doctor in September 1997 - some five years after his completion of duties in Croatia and Bosnia.

[8]      Sergeant Duplessis claims that in February 1997, his duties and responsibilities were unilaterally altered. He was demoted and all of his previous supervisory responsibilities removed. The decision was made on the determination that he was disabled and unfit to perform his duties. Sergeant Duplessis claims that the decision was made in bad faith and states that the reasons given for his release were a pretext to get rid of him. He was improperly evaluated and ultimately improperly scheduled for release by the Armed Forces.

[9]      He went on sick leave in August 1997 until his discharge in October 1997. During his sick leave, Sergeant Duplessis received no financial, medical counselling or assistance from his superior officers or his Armed Forces medical personnel. He was eventually diagnosed with post-traumatic stress disorder and received a pension entitlement pursuant to the Pension Act. The entitlement was assessed at 20% disability on October 15, 1998, and then raised to 45% disability on December 6, 1999, by decision of the Veterans Review and Appeal Board.

[10]      A provisional report prepared by the defendant considered that the treatment available to those who had served in Croatia in 1993 to 1995 was "at best, arbitrary", "inadequate" and "a disgrace".

[11]      Sergeant Duplessis brought a claim against the Crown on February 17, 2000. An amended statement of claim was filed April 11, 2000. Sergeant Duplessis seeks damages in the amount of $500,000 against the defendant for:

(a) negligence in failing to fulfill duties competently;

(b) negligence in failing to perform all statutory duties;

(c) breach of statutory duties;

(d) breach of fiduciary duty;

(e) breach of section 7 of the Charter;

(f) breach of section 15 of the Charter

[12]      The claims and some of the specific allegations of Sergeant Duplessis are reproduced below from paragraphs 33 to 37 of the plaintiff's amended statement of claim:

33.      The defendant breached its fiduciary obligations in that inter alia:

a)      no counselling or assistance was in place to help soldiers such as Sergeant Duplessis adjust to the return from peace keeping duties in Croatia and Bosnia and cope with the traumatic experiences they suffered when it knew or ought to have known that such counselling and assistance was required;

b)      since 1993, despite repeated requests, the defendant failed ro refused to provide the appropriate support, counselling, services and assistance to Sergeant Duplessis;

c)      the defendant failed to implement a policy or program of assistance to Sergeant Duplessis;

d)      the defendant betrayed its obligations of loyalty and good faith which it owed to Sergeant Duplessis and allowed him to suffer from racial discrimination; and

e)      the defendant allowed its own self-interest to conflict with and to prevail over its fiduciary duty to Sergeant Duplessis.

34.      The defendant, through her employees, servants, or agents, including Mayor Wayville, Captain Vermeech, Warrant Officer Butler, Warrant Officer Morgan, Warrant Officer Behrsin, Captain Roy and Major Goddam was negligent, breached her statutory duties and obligations, breached her fiduciary obligations and breached her Charter obligations owed to Sergeant Duplessis in that, inter alia:

(a)      she failed to perform her duties and obligations to ensure that Sergeant Duplessis was not deprived of his right to life, liberty and security of the person as guaranteed by section 7 of the Charter of Rights and Freedoms;

(b)      she failed to perform her duties and obligations to ensure that Sergeant Duplessis was not deprived of his right to equal protection and equal benefit of the law without discrimination based on race or mental disability as guaranteed by section 15(1) of the Charter;

(c)      she failed to provide the appropriate guidance to military staff who were responsible to Sergeant Duplessis;

(d)      she failed to properly assess Sergeant Duplessis' behaviour problems and provide timely counselling and support services despite his repeated requests as detailed above;

(e)      she failed to respond adequately and in a timely fashion to Sergeant Duplessis' concerns regarding his rights and obligations; and

(f)      she failed to ensure that the applicable QR & Os and CFAOs were implemented for the release of Sergeant Duplessis.

35.      The defendant, by its inaction, continues to be in breach of all its obligations owed to Sergeant Duplessis.

The Plaintiff's Damages and Loss

36.      By reason of the defendant's and her employees', agents' and servants' negligence, breach of statutory duties and obligations, breach of the fiduciary duties and breach of Charter obligations owed to Sergeant Duplessis, or as a result of some or all of such breaches by the defendant, her employees, servants and agents, Sergeant Duplessis did not receive adequate counselling, debriefing or psychological assistance, he suffered from racial discrimination and he wrongfully lost his status of employment and ranking with the Canadian Armed Forces. He has suffered and continues to suffer losses and damages in consequence thereof, full particulars of which are as yet unascertained.

37.      Due to the intentional, wrongful and high-handed conduct of the defendant, Sergeant Duplessis is entitled to receive punitive, aggravated and exemplary damages.

Motion to strike pursuant to rule 221

[13]      The Crown moves to strike pursuant to paragraphs (a), (b), (c) and (f) of rule 221(1) of the Federal Court Rules, 1998, as follows:

221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it (a) discloses no reasonable cause of action or defence, as the case may be, (b) is immaterial or redundant,	221. (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d'un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas : a) qu'il ne révèle aucune cause d'action ou de défense valable; b) qu'il n'est pas pertinent ou qu'il est redundant;
(c) is scandalous, frivolous or vexatious, [...] (f) is otherwise an abuse of the process of the Court, and may order the action be dismissed or judgment entered accordingly. (2) No evidence shall be heard on a motion for an order under paragraph (1)(a).	c) qu'il est scandaleux, frivole ou vexatoire; [...] f) qu'il constitue autrement un abus de procédure. Elle peut aussi ordonner que l'action soit rejetée ou qu'un jugement soit enregistré en conséquence. (2) Aucune preuve n'est admissible dans le cadre d'une requête invoquant le motif visé à l'alinéa (1)a).

[14]      The applicable test and principles for striking a pleading pursuant to paragraph 221(1)(a), are well established and common ground between the parties. The threshold is set high. In order to prevail, the Crown must demonstrate that the claim sought to be struck has no possibility whatever of success. A claim will be struck under 221(1)(a) only where it is plain and obvious and beyond doubt that it cannot succeed: Hunt v. Carey Can. Inc., [1990] 2 S.C.R. 959; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441.

[15]      In the context of a motion to strike, a statement of claim is to be read generously and the term "reasonable cause of action" must be construed such that a "germ" or "scintilla" of a cause of action will suffice to maintain the claim: Perera v. Canada, [1997] F.C.J. No. 199 (T.D.); Operation Dismantle Inc. v. The Queen, [1983] 1 F.C. 745 (C.A.).

[16]      A party to an action is also not to be deprived of his or her claim merely because the claim is novel, the issues are complex, the arguments lengthy or less likely to succeed than those of the opposing party. Indeed, the plaintiff commends to my attention that this court has rejected motions to strike where there were serious issues of law or arguable issues of mixed fact and law which are best left for determination by the trial judge: Vulcan Equipment Co. Ltd. v. The Coats Co., Inc., [1982] 2 F.C. 77; VISX Inc. v. Nidek Co., (1998) 82 C.P.R. (3d) 289.

[17]      As to the other grounds relied on by the Crown, the applicable standard is not dissimilar to that applied in striking for want of a cause of action. In order to succeed, the party wishing to strike has to demonstrate that a pleading is so immaterial, frivolous or abusive as to be patently futile and bereft of any possibility of success: Pfizer Canada Inc. v. Apotex Inc., (1999) 172 F.T.R. 81.

Rule 221: submission of evidence

[18]      In the context of this motion, the defendant seeks to introduce affidavit evidence which consists of the two decisions relating to Sergeant Duplessis' pension: the Department of Veterans' Affairs Award dated October 15, 1998, as well as the decision of the Veterans Review and Appeal Board dated December 6, 1999. The plaintiff objects on the grounds that such evidence is precluded by the application of rule 221(2). As stated above, for the purposes of a motion pursuant to rule 221(1)(a), the facts pleaded in the statement of claim are deemed to have been proved and rule 221(2) explicitly prohibits affidavit evidence being adduced in the context of a motion to strike for want of a cause of action.

[19]      While this rule has been strictly interpreted and applied, it has been somewhat modified in the case of a motion to strike based on an alleged lack of jurisdiction, in which case the court requires the "jurisdictional facts" on which to base its decision: MIL Davie Inc. v. Hibernia Management and Development Co. (1998) 226 N.R. 369 (F.C.A. No. 614).

[20]      The defendant argues inter alia that the court has no jurisdiction in respect of Sergeant Duplessis' claim as the action is precluded by virtue of section 9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 and section 111 of the Pension Act, R.S.C. 1985, c. P-6. In the circumstances, the defendant may file evidence to address this issue and I have accordingly had reference to the two pension decisions in the context of my comments on the application of the statutory bars invoked by the Crown.

Issues

[21]      The following are the full grounds on which the Crown moves to strike:

Sergeant Duplessis is receiving a pension in relation to post-traumatic stress disorder and therefore, the action is precluded by virtue of section 9 of the Crown Liability and Proceedings Ac t and section 111 of the Pension Act;

The facts pleaded cannot support Sergeant Duplessis' claim for violation of section 7 of the Charter of Rights and Freedoms (the "Charter") or breach of fiduciary obligations; and

The action is brought outside the six month limitation period prescribed by section 269(1) of the National Defence Act, R.S.C. 1985, CN-5, s. 269.

[22]      In its opening remarks and for the purposes of this motion, the Crown abandoned its argument on the grounds of prescription. Also of note, the defendant does not, in the context of this motion, challenge the plaintiff's claim under section 15 of the Charter other than its submission that the claim is precluded by Sergeant Duplessis' receipt of a pension.

[23]      I shall proceed to deal with the Crown's grounds for striking in inverse order, commencing with the breach of fiduciary obligation.

The claim based on a fiduciary duty of the Crown

[24]      The law of fiduciary duty is not settled and the development of new fiduciary relationships is ongoing. One of the leading cases on fiduciary duties is [1984] 2 S.C.R. 335">Guerin v. Canada [1984] 2 S.C.R. 335.

It is sometimes said that the nature of fiduciary relationships is both established and exhausted by the standard categories of agent, trustee, partner, director, and the like. I do not agree. It is the nature of the relationship, not the specific category of actor involved that gives rise to the fiduciary duty. The categories of fiduciary, like those of negligence, should not be considered closed. See, e.g. Laskin v. Bache & Co. Inc. (1971), 23 D.L.R. (3d) 385 (Ont.C.A.), at p. 392: Goldex Mines Ltd. v. Revill (1974), 7 O.R. 216 (Ont.C.A.), [at p. 224][emphasis added]

[25]      The Supreme Court noted in [1984] 2 S.C.R. 335">Guerin that fiduciary duties typically arise in the context of private law but in the circumstances of that case, did find a sui generis relationship in which the Crown has fiduciary obligations.                 

It should be noted that fiduciary duties generally arise only with regard to obligations originating in a private law context. Public law duties, the performance of which requires the exercise of discretion, do not typically give rise to a fiduciary relationship. As the "political trust" cases indicate, the Crown is not normally viewed as a fiduciary in the exercise of its legislative or administrative function. The mere fact, however, that it is the Crown which is obligated to act on the Indians' behalf does not of itself remove the Crown's obligation from the scope of the fiduciary principle. As was pointed out earlier, the Indians' interest in land is an independent legal interest. It is not a creation of either the legislative or executive branches of government. The Crown's obligation to the Indians with respect to that interest is therefore not a public law duty. While it is not a private law duty in the strict sense either, it is nonetheless in the nature of a private law duty. Therefore, in this sui generis relationship, it is not improper to regard the Crown as a fiduciary. [at p. 385]

[26]      The Supreme Court later set down a rough guide to assess whether a fiduciary duty could be found in a new area. In Lac Minerals Ltd. v. Int. Corona Resources Ltd. [1989] 2 S.C.R. 574 at page 645, the Court followed Wilson J.'s decision in Frame v. Smith [1987] 2 S.C.R. 99 (also followed in British Columbia Native Women's Society v. Canada, [2000] 1 F.C. 304 (T.D.)):

Wilson J. had occasion to consider the extension of fiduciary obligations to new categories of relationships in Frame v. Smith, supra. She found, at p. 136 that:

... there are common features discernible in the contexts in which fiduciary duties have been found to exist and these common features do provide a rough and ready guide to whether or not the imposition of a fiduciary obligation on a new relationship would be appropriate and consistent. Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics:

(1) The fiduciary has scope for the exercise of some discretion or power.

(2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests.

(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. [emphasis added]

[27]      In the present case, the plaintiff argues that the defendant, through Her agents and employees, has a fiduciary duty towards the plaintiff which it breached both through its action and inaction, by not providing him with proper counselling and assistance and by allowing him to suffer from racial discrimination and otherwise at the hands of his superiors.

[28]      The defendant submits that no "power dependency" relationship, as has been found in employment cases, exists between the plaintiff and the Crown. The military has a comprehensive grievance procedure which allows members to have issues adjudicated including ones dealing with "oppression, injustice or other ill-treatment": National Defence Act, s. 29. The Crown submits therefore there is no scope for the plaintiff to rely on any one of the three elements stipulated in the Frame v. Smith test. Military life is strictly governed by administrative procedures. Orders and decisions are not left to the whims of officers and there is a grievance procedure in place which is capable of resolving the dispute.

[29]      The plaintiff responds that the military has unique scope for the exercise of power by virtue of the soldier's duty to obey orders. It has power to give or withhold aid. It is in the context of the treatment that is characterized as arbitrary, that Sergeant Duplessis' superior officers are alleged to have decided a range of matters which have clearly affected his interests. As to the particular vulnerability of the soldier, the plaintiff argues, it is manifest from the very circumstances of Sergeant Duplessis' case.

[30]      From the jurisprudence, it is evident that the categories giving rise to a fiduciary duty remain open. Terms such as "power" and "particularly vulnerable" have scope for interpretation and have not been judicially considered in respect of the relationship of the soldier to the Minister of National Defence. No jurisprudence was submitted wherein these terms have been considered in the context of military service or would preclude a determination that the relationship of soldier to the Crown may be a unique relationship in the manner of [1984] 2 S.C.R. 335">Guerin. The defendant may have a stronger argument in that regard, but it is not conclusive.

[31]      Given the facts pleaded and continued prospects for the development of new fiduciary relationships, I cannot conclude that it is plain and obvious that Sergeant Duplessis' claim should fail. There is a serious question of law here that is more appropriately left for determination by the trial judge on the merits.

[32]      That said, this leaves a question in connection with this claim to be considered later, namely; whether the plaintiff has already been compensated for the injury suffered as a result of the alleged breach of fiduciary duty.

The claim based on section 7 of the Charter

[33]      There are two aspects to the Crown's argument which overlap to some extent. The first, is that the plaintiff has not pleaded sufficient facts on which to base a claim on section 7 of the Canadian Charter of Rights and Freedoms (the "Charter"). The second, is that section 7 has been strictly interpreted as being applicable only in circumstances where the claimants' rights are infringed in the context of the administration of justice. Given that Sergeant Duplessis' claim is outside the context of the administration of justice, it is submitted that the claim must fail.

[34]      Before addressing the defendant's arguments, I will briefly review the terms of section 7 of the Charter and its judicial interpretation.

[35]      Section 7 of the Charter holds:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[36]      The Supreme Court of Canada has adopted a two-step process for the application of this provision. In R. v. Beare [1988] 2 S.C.R. 387, Justice La Forest at page 401 of the judgment, states for the unanimous Court:

Section 7 of the Charter

The analysis of s. 7 of the Charter involves two steps. To trigger its operation there must first be a finding that there has been a deprivation of the right to "life, liberty and security of the person" and, secondly, that that deprivation is contrary to the principles of fundamental justice. Like other provisions of the Charter, s. 7 must be construed in light of the interests it was meant to protect. It should be given a generous interpretation, but it is important not to overshoot the actual purpose of the right in question; see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344.

                    

This approach was followed in Pearlman v. Manitoba Law Society Judicial Committee [1991] 2 S.C.R. 869 and most recently in Blencoe v. British Columbia (Human Rights Commission) [2000] S.C.J. 44.

[37]      Turning to the scope of the protection for the "security of the person", the case law provides that both physical as well as mental integrity are covered within the ambit of section 7: Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519 at page 588.

... There is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these.

[38]      In New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, Chief Justice Lamer for the Court elaborates on the notion of the psychological integrity of the individual and states:

Delineating the boundaries protecting the individual's psychological integrity from state interference is an inexact science. Dickson C.J. in Morgentaler, supra, at p. 56, suggested that security of the person would be restricted through "serious state-imposed psychological stress" (emphasis added). Dickson C.J. was trying to convey something qualitative about the type of state interference that would rise to the level of an infringement of this right...

For a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person's psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety. [emphasis added]

I have little doubt that state removal of a child from parental custody pursuant to the state's parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent. New Brunswick (Minister of Health and Community Services) v. G. (J.).

[39]      Canadian courts have indeed tended to restrict the applicability of section 7 of the Charter to situations where the individual's "life, liberty and security of the person" are affected through direct contact with the justice system and its administration. In Rodriguez, supra, Justice Sopinka, for the majority, put the following gloss on the interaction with the justice system that may suffice to engage the protection of section 7 of the Charter, at page 584 he states:

... Nor do I accept the submission that the appellant cannot avail herself of s. 7 because she is not presently engaged in interaction with the criminal justice system, and that she will likely never be so engaged. It was argued that the comments concerning security of the person found in R. v. Morgentaler, [1988] 1 S.C.R. 30, and the Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, were not applicable to this case and that the appellant could not seek the protection of s. 7 at all, as that section is concerned with the interaction of the individual with the justice system. In my view, the fact that it is the criminal prohibition in s. 241(b) which has the effect of depriving the appellant of the ability to end her life when she is no longer able to do so without assistance is a sufficient interaction with the justice system to engage the provisions of s. 7 assuming a security interest is otherwise involved. [emphasis added]

[40]      Counsel for the plaintiff admits, for the purposes of this motion, that the violation of Sergeant Duplessis' section 7 rights do not arise out of his interaction with the justice system or its administration. The plaintiff argues however, that this is not fatal as the case law is evolving and cites Rodriguez and the Kipling case in that connection.

[41]      In the Standing Court Martial of Ex-Sergeant Kipling, whose breach of command resulted in severe disciplinary proceedings, the Chief Military Judge found that the forced vaccination program did violate section 7 of the Charter, in that the accused's right to life, liberty, and security of the person was infringed. At page 2 of the minutes of the proceedings of the Standing Court Martial:

Non-consensual vaccination under the threat of disciplinary proceedings amounts to an invasion of the bodily integrity and personal autonomy of a person. [emphasis added]

[42]      The plaintiff points out that the issue before the court in Kipling was the application of section 7 in connection with a positive law which imposed mandatory vaccination and did not involve the accused's interaction with the judicial system.

[43]      Further in that connection, the plaintiff relies on Jane Doe v. Board of Commissioners of Police for the Municipality of Metropolitan Toronto, 74 O.R. (2d) 225 (Div. Crt.). In that action, the plaintiff was the victim of a rape by the "balcony rapist" who had similarly raped other victims in the same area. The plaintiff sued the Metropolitan Toronto Police for damages on the grounds that the police had failed to warn women of the risk of an attack and had violated her rights under sections 7 and 15 of the Charter. The court found in favour of the plaintiff and awarded damages for the breach of the plaintiff's Charter rights. Justice Moldaver at page 234 of the decision held:

The plaintiff claims that she was deprived of her right to security of the person. The defendants chose, or at least adopted a policy which favoured the apprehension of the criminal over her protection as a targeted rape victim. By using Ms. Doe as "bait", without her knowledge or consent, the police knowingly placed her security interest at risk. This stemmed from the same stereotypical and therefore discriminatory belief already referred to.

According to the plaintiff, she was deprived of her right to security of the person in a manner which did not accord with the principles of fundamental justice. These principles, while entitled to broad and generous interpretation, especially in the area of law enforcement, could not be said to embrace a discretion exercised arbitrarily or for improper motives. See R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387, 36 C.R.R. 90, 45 C.C.C. (3d) 57, 66 C.R. (3d) 97, 55 D.L.R. (4th) 481, 88 N.R. 205, 71 Sask. R. 1, [1989] 1 W.W.R. 97. [emphasis added]

As a result, the plaintiff claims that her rights under s. 7 of the Charter were violated. Again, in my opinion, these pleadings do support such a violation.

[44]      Counsel for Sergeant Duplessis points out that in Jane Doe, there is no direct or any interaction of the plaintiff with the judicial system or its administration, there being neither a civil nor criminal prosecution in progress. Instead, the impugned action or lack of action arose out the application by the police of a policy. Counsel for Sergeant Duplessis emphasises that the court in Jane Doe found that the plaintiff in that case was deprived of her security of the person contrary to the principles of fundamental justice, where the police exercised its discretion arbitrarily and for an improper motive.

[45]      I agree with the defendant that the jurisprudence has and continues to require that alleged restrictions on the rights, liberty and security of the person, must result from state action or the interaction of the individual with the justice system. This was affirmed by the Supreme Court in New Brunswick, Minister, decided later than Jane Doe. It has very recently been reaffirmed in Blencoe. Justice Basterash speaking for the full court, states at page 33 of the judgment:

" the Court in Rodriguez, supra, surely did not eliminate the need to establish a relationship between the harm complained of and state action".

[46]      That said, there can be no doubt that the jurisprudence on section 7 of the Charter is developing. I agree with the plaintiff, that there has been an incremental expansion of the rights protected under section 7. For example, the courts have moved away from requiring direct interaction with the criminal justice system to encompass civil proceedings and most recently in Blencoe; the British Columbia Human Rights Commission, with the government as its ultimate source of authority, was held by the Supreme Court to be administering a governmental program that calls for Charter scrutiny. The Supreme Court has also incrementally broadened the purview of what is encompassed within the notion of "security of the person" and continues to further define the notion (see for example the discussion of the protection of "dignity" in Blencoe).

[47]      Of additional importance, section 7 rights are context specific and a claim should not be rejected unless it is clearly and definitively outside the range of contexts that may be accepted. Justice L'Heureux-Dubé emphasises the importance of context at page 322 of R. v. Généreux [1992] 1 S.C.R.

... Context has been especially useful in determining the scope of "the principles of fundamental justice" for the purposes of s. 7. (Besides the reasons of Cory J. in Wholesale Travel see also Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 513 (per Lamer J.), Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at pp. 848-50 (per McLachlin J.), and my dissenting reasons in R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 647.) As Wilson J. pointed out, a right or freedom may have different meanings in different circumstances and to ignore these circumstances at the level of the substantive right or freedom would be to ignore a substantial amount of information at a critical stage of the analysis.

[48]      The elements pleaded by Sergeant Duplessis include the allegation that the refusal to provide him with assistance for the trauma he had experienced as a peace keeper had a serious and profound effect on Sergeant Duplessis' psychological integrity. The defendant, in light of a positive duty to assist him, failed in its duty and in so doing acted out of improper motives. The treatment he was accorded was acknowledged to be a disgrace, in violation, claims Sergeant Duplessis, of his rights and the principles of natural justice. Can the actions or principally inaction of the Armed Forces, in this context, and the circumstances alleged, be impugned as depriving the plaintiff of his right to life liberty and security of the person? Given the state of the jurisprudence, the matter is arguable and not as the defendant suggests, evident beyond doubt.

[49]      In light of the allegations of the plaintiff and notwithstanding that some elements of the applicable test may not be clearly or conventionally made out, I cannot conclude that the claim must inexorably fail. Moreover, it is appropriate that the question of the scope and application of section 7 of the Charter in these circumstances, be determined by the court on the merits, taking into account the full factual context.

The pension bar

[50]      The defendant argues that, pursuant to section 111 of the Pension Act, no claim may be brought against the Crown where the plaintiff has received a pension in respect of the same injury or an aggravation thereof.                         

111. No action or other proceeding lies against Her Majesty or against any officer, servant or agent of Her Majesty in respect of any injury or disease or aggravation thereof resulting in disability or death in any case where a pension is or may be awarded under this Act or any other Act in respect of the disability or death. [Emphasis added]

111. Nulle action ou autre procédure n'est recevable contre Sa Majesté ni contre un fonctionnaire, préposé ou mandataire de Sa Majesté relativement à une blessure ou une maladie ou à son aggravation ayant entraîné une invalidité ou le décès dans tous cas où une pension est ou peut être accordée en vertu de la présente loi ou de toute autre loi, relativement à cette invalidité ou à ce décès. [Mes soulignés]

[51]      Furthermore, the defendant argues that section 9 of the Crown Liability and Proceedings Act provides a similar bar to the present action.

9. No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made.

9. Ni l'État ni ses préposés ne sont susceptibles de poursuites pour toute perte -- notamment décès, blessures ou dommages -- ouvrant droit au paiement d'une pension ou indemnité sur le Trésor ou sur des fonds gérés par un organisme mandataire de l'État.

[52]      The Crown's position is that, in light of these statutory provisions, the plaintiff's claim is redundant, discloses no reasonable cause of action and is outside the jurisdiction of the court.

[53]      The defendant explains that the purpose of sections 111 of the Pension Act and 9 of the Crown Liability and Proceedings Act, is to prevent the Crown from paying twice for the same injury. The Crown relies on a number of cases where sections 111 and 9 have been held to bar actions by military personnel for damages in respect of injuries, including the aggravation of the injury for which a pension was paid or payable; Arsenault v. Canada (1995), 104 F.T.R. 28; O'Connor v. Canada (1995), 94 F.T.R. 93; Dufour v. Textron Inc. [1993] O.J. No. 1738.

[54]      In the defendant's submission, the term "in respect of" as it appears in both section 9 of the Crown Liability and Proceedings Act and section 111 of the Pension Act, is to be given the widest possible scope; Langille v. Canada (F.C.A.) [1992] 2 F.C. 208; [1983] 1 S.C.R. 29">R. v. Nowegijick [1983] 1 S.C.R. 29. Broadly interpreted, the term will include "connected to" or "related to" such as to wholly preclude the plaintiff's claims as these arise out of his disorder and its eventual aggravation.

[55]      The Crown argues that the statement of claim does no more than repeat the arguments and injuries that were addressed and are being compensated for by the plaintiff's disability pension. Here the defendant relies on the two pension decisions which discuss the specific symptoms of post-traumatic stress disorder for which compensation is sought in the claim; including:

1)      Depression;

2)      impaired concentration, memory and decision-making

3)      unable to function effectively in areas of work, family or inter-personal relationships;

4)      dysfunctional and not able to perform his regular duties;

5)      suicidal and homicidal thoughts;

6)      dysphoria, excessive feelings of guilt, suicidal ideation, insomnia, loss of interest and poor work performance, psychomotor retardation, psychological anxiety, loss of appetite, hypochondriasis, helplessness, pessimism, hopelessness and indecision.

[56]      The psychiatric report from the Homewood Health Center to the Veteran Board notes some of the plaintiff's experiences after his return from Croatia at page 3 of the 1999 decision:

At the time of my out patient assessment and several appointments, it was clear that Seargant Duplessis was quite dysfunctional and was not able to perform his regular duties in the Canadian Armed Forces. It seems that at this time he has been labelled as an administrative burden and his contract has not been renewed. It seems unfortunate that the Canadian Armed Forces would want to lose such a valuable soldier of almost 20 years.

... a man with significant trauma who has been receiving treatment from various providers as best they were able to provide for a person in Mr. Duplessis' condition. However, because of the uniqueness of military deployment and experiences in military service, Mr. Duplessis has continued to struggle with significant and serious deployment - related psychological reaction.

[57]      The plaintiff argues that sections 111 of the Pension Act and Section 9 of the Crown Liability and Proceedings Act are not a bar to the plaintiff's action as his claims are not in respect of his disorder but rather the losses he has suffered as a result of the breaches of his Charter rights including loss of his job and career, and the failure of the Armed Forces to provide him with support, care and treatment.

[58]      I shall explore three considerations raised by the above statutory provisions and the arguments of the parties. First, whether these statutory bars may be construed so as to restrict a Charter right. Second, the scope of application of these statutory bars with respect to other claims. Third, whether the injury claimed in the present action is an injury in respect of which the plaintiff has been awarded a pension.

i) Interaction Between the Charter and Statutory Bars to Actions

[59]      The first issue requires some consideration of whether the plaintiff's Charter claim is barred by operation of the above statutory provisions, which prima facie restrict the possible causes of action against the Crown.

[60]      In Prete v. Canada,110 D.L.R. (4^th) 94 (Ont. C.A.) the Court was faced with a claim involving Charter grounds in a situation where the claim appeared to be prescribed as a result of the action of the Proceedings Against the Crown Act, R.S.O. 1990, c.P.27., which established a 6-month limitation period against the provincial Crown. Relying on the Supreme Court of Canada decision in Nelles v. Ontario (1989), 60 D.L.R. (4^th) 609 (S.C.C.), the Court concluded that a provincial statute could not be effective in removing a constitutional right enshrined in the Charter.

The reasons of Lamer J., standing alone, are strongly persuasive that a statutory enactment cannot stand in the way of a constitutional entitlement. Section 32(1)(b) of the Charter provides that the Charter applies to the legislature and government of each province. The remedy section of the Charter would be emasculated if the provincial government, as one of the very powers the Charter seeks to control, could declare itself immune.

Therefore, s. 5(6) of the Proceedings Against the Crown Act must be construed as limited to the causes of action that are permitted against the Crown under s. 5(1) of that Act, and cannot infringe upon a s. 24(1) Charter remedy, [at page 100].

[61]      However, in Budge v. Calgary (City) [1991] A.J. No. 72, 77 D.L.R. (4^th) 361 (Alta C.A.), the Alberta Court of Appeal provided some nuance to this view. In Budge, the Workers' Compensation Act provided a statutory compensation scheme in lieu of common law liability, and thus restricted access to the courts. Having received some compensation under the Act for an injury, the plaintiff sought to pursue the City of Calgary for damages arising from the same injury, arguing that the Workers' Compensation Act limitation clause was in violation of the Charter. The Court of Appeal concluded that the Charter did not protect economic rights and access to the courts to pursue these economic rights.

Thus, the Workers' Compensation Act was not in violation of the Charter. At the same time, the Court of Appeal concluded by stating at page 10:

The foregoing should be read in context. It has to do with a statute which replaces common law liability with a special scheme of compensation much like insurance. So it does not bar all recourse. It does not pardon or legalize tortious conduct, still less deliberate conduct. In a different case with different facts outside that context, different Charter considerations might apply. But I need not consider whether that is so here. In any event, no argument was made here that the law of torts generally is protected under s. 7 of the Charter. [emphasis added]

[62]      It is useful to distinguish the Charter attacks in Budge and Prete. In Prete, the plaintiff sought section 24 damages for breach of Charter rights arising out of an alleged malicious prosecution. The claim itself was based on a Charter violation, and the limiting statute attempting to remove the recourse. In Budge, however, the plaintiff argued that his loss of access to the courts to litigate his claim was itself the violation of his Charter rights. In the case at bar, the plaintiff's claim of a violation of his section 7 and 15 Charter rights is based on conduct of his superior officers. He does not base his claim simply on a constitutional defect in the Pension Act or the Crown Liability Proceeding Act. Sergeant Duplessis' claim is therefore more akin to Prete than Budge.

[63]      Moreover, Budge clearly states that compensation schemes such as Workers Compensation, do not bar all recourse. The operation of a statutory bar is dependant on the facts of the case and the nature of the Charter claim, leaving it open to the plaintiff in this instance to argue the inviolability of the particular Charter claims he is asserting. It is therefore not plain and obvious that the statutory bars invoked by the Crown will, of necessity, restrict access to a remedy for the Charter violations alleged by Sergeant Duplessis.

ii) Interpretation of Section 9 of the Crown Liability and Proceedings Act and Section 111 of the Pension Act

[64]      The second issue requires some consideration of the proper approach to take in applying section 9 of the Crown Liability and Proceedings Act and section 111 of the Pension Act.

    

[65]      Section 9 of the Crown Liability and Proceedings Act was considered in Aussant v. Canada [2000] F.C.J. No. 600 (T.D.). In that decision, Justice Dawson, on the basis of the reasoning of Justice Lutfy (as he then was) in McLean v. Canada, (1999) 164 F.T.R. 208 (T.D.), held that section 9 could reasonably be interpreted as being limited to actions in tort, as opposed to action in breach of contract or otherwise. For this reason, it is certainly inappropriate to strike the plaintiff's entire claim on the basis of section 9 of the Crown Liability and Proceedings Act.

[66]      As to section 111 of the Pension Act, it is the defendant's position that the provision is not limited in the manner of section 9 of the Crown Liability and Proceedings Act and may be relied on to preclude the plaintiff's other heads of action such as breach of statutory duty as well as breach of fiduciary obligations.

[67]      The preliminary question to be answered is whether the plaintiff's claim is in respect of the injury for which a pension was or may be awarded under the Pension Act.

[68]      The plaintiff does not claim that he is disabled as a result of the defendant's conduct. The plaintiff's argument is that Sergeant Duplessis' true losses are greater than the compensation which he received by way of pension. He was humiliated, discriminated against, isolated, branded a trouble maker, provoked to breach the chain of command and improperly released. The breaches of the Crown in not providing the support necessary to Sergeant Duplessis, are stated to have consequences separate from his disorder namely, by his isolation or stigmatization, mental distress, humiliation and loss of dignity.

[69]      As a preliminary matter, the Crown does not maintain that Sergeant Duplessis has sustained a separate injury or set of injuries for which compensation is payable within the meaning of section 111 of the Pension Act, such as to preclude any further claim for damages. The Crown's position, as I understand it, are that the injuries, which are claimed to result from his mistreatment, are either related to or symptomatically indistinguishable from the aggravation of his syndrome.

[70]      Although the nature of the plaintiff's injuries are similar in nature being psychological and affective, they are alleged to be distinct, unrelated to his disorder and resulting uniquely from the conduct of his superiors. Under the circumstances, it is inappropriate to evaluate the distinctiveness, if any, of the injuries which Sergeant Duplessis claims to have resulted from his treatment, in the context of this motion. As to the pension awards on which the defendant relies, these are neither complete nor conclusive in that regard. I therefore decline to merge Sergeant Duplessis' claims as merely an aggravation of his post-traumatic stress disorder.

[71]      Absent clearer evidence that the pension entitlement was intended to cover and does cover the injuries which form the basis for this claim, and that these injuries are in fact related to or indistinguishable from the aggravation of his syndrome, I cannot find it plain and obvious that the plaintiff has already been awarded a pension in relation to the injuries claimed. This finding applies equally to section 9 of the Crown Liability and Proceedings Act on which the Crown relies to bar Sergeant Duplessis' claim in tort.

[72]      I would add that more complete evidence as to the nature and extent of the injuries claimed or their relation to the plaintiff's disorder cannot be adduced and should not be evaluated in the context of a motion to strike. At the least, this matter requires full pleadings and discoveries. I agree with the defendant that there are injuries argued to have been sustained by Sergeant Duplessis, that may be surmised but are not explicitly pleaded in the statement of claim. To the extent that the Crown feels that insufficient facts are pleaded in respect of those injuries which preclude it from pleading in turn, it is open to the defendant to begin by requesting further particulars.

[73]      For the above reasons, I shall dismiss the defendant's motion by separate order to issue as of this date.

Costs

[74]      The plaintiff applies for costs to be awarded on a solicitor-and-client basis, payable forthwith. I find no basis in the circumstances of this case as would justify such an award.

                             (Sgd.) "Roza Aronovitch"

                                 Prothonotary

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:      T-294-00

STYLE OF CAUSE:      Peter Duplessis v. Her Majesty The Queen

    

PLACE OF HEARING:      Ottawa, Ontario

DATE OF HEARING:      June 29, 2000

REASONS FOR ORDER OF ROZA ARONOVITCH

DATED:      November 17, 2000

APPEARANCES:

Ms. B.A. McIsaac, QC and Mr. K. Klein      FOR PLAINTIFF

Ms. Catherine Moore and Mr. M. Roach      FOR DEFENDANT

SOLICITORS OF RECORD:

McCarthy Tétrault

Ottawa, Ontario          FOR PLAINTIFF

Morris Rosenburg

Ottawa, Ontario          FOR DEFENDANT