Date: 20021101
Docket: T-541-02
Montréal, Quebec, November 1, 2002
Present: Mr. Richard Morneau, Prothonotary
BETWEEN:
ANDRÉ TREMBLAY
Plaintiff
and
HER MAJESTY THE QUEEN
and
ATTORNEY GENERAL OF CANADA
Defendants
ORDER
For the reasons accompanying this order, the defendants' motion to strike out is dismissed, without costs.
This proceeding will now be managed as a specially managed proceeding. Accordingly, counsel for each party shall, within twenty days of the date of this order, submit to the Court - on a joint basis, to the fullest extent possible - a schedule that will cover the measures to be taken subsequently in this proceeding.
This schedule shall, probably as an initial stage, provide a deadline for the plaintiff to serve and file a reamended statement of claim in which he shall identify precisely in his statement of claim the statutory and regulatory provisions that he is attacking, the precise nature of his attack and the statutory or Charter provisions that serve as support or justification for the relief he is seeking.
Richard Morneau
Prothonotary
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20021101
Docket: T-541-02
Neutral Citation: 2002 FCT 1072
BETWEEN:
ANDRÉ TREMBLAY
Plaintiff
and
HER MAJESTY THE QUEEN
and
ATTORNEY GENERAL OF CANADA
Defendants
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] This is a motion by the defendants under paragraph 221(1)(a) of the Federal Court Rules, 1998 (the Rules) for the striking out of the plaintiff's amended statement of claim (the statement of claim) and the dismissal of his action on the ground that this statement of claim discloses no reasonable cause of action.
State of the law on striking out
[2] Rule 221 is addressed to the possibility of having a proceeding struck out in the context of an action.
[3] The rule reads as follows:
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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
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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 :
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(a) discloses no reasonable cause of action or defence, as the case may be,
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a) qu'il ne révèle aucune cause d'action ou de défense valable;
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(b) is immaterial or redundant,
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b) qu'il n'est pas pertinent ou qu'il est redondant;
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(c) is scandalous, frivolous or vexatious,
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c) qu'il est scandaleux, frivole ou vexatoire;
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(d) may prejudice or delay the fair trial of the action,
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d) qu'il risque de nuire à l'instruction équitable de l'action ou de la retarder;
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(e) constitutes a departure from a previous pleading, or
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e) qu'il diverge d'un acte de procédure antérieur;
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(f) is otherwise an abuse of the process of the Court,
and may order the action be dismissed or judgment entered accordingly.
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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.
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(2) No evidence shall be heard on a motion for an order under paragraph (1)(a).
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(2) Aucune preuve n'est admissible dans le cadre d'une requête invoquant le motif visé à l'alinéa (1)a).
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[4] This rule is the equivalent of Rule 419 in the old Federal Court Rules. The case law developed under that rule is therefore applicable to Rule 221.
[5] Accordingly, under paragraph 221(1)(a), it must be plain and obvious (see [1980] 2 S.C.R. 735">Canada (A.G.) v. Inuit Tapirisat, [1980] 2 S.C.R. 735, at p. 740) that the statement of claim discloses no reasonable cause of action.
Context
[6] The essential context to bear in mind for the purposes of analyzing this motion is disclosed in paragraphs 2 to 4 of the statement of claim. According to paragraph 2, the plaintiff was a member of the Canadian Forces from January 1, 1962 to October 9, 1969, and from September 28, 1991 to March 31, 1999.
[7] In paragraphs 3 and 4, the plaintiff identifies the triggering factor in his action, his retirement, and the source or cause of this event, namely, the presence of one or more provisions of the Queen's Regulations and Orders for the Canadian Forces (the QR & O) dealing with the mandatory age of retirement.
[8] The plaintiff submits that these provisions of the QR & O, as well as the provisions of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended (the Human Rights Act) are in conflict with other sections of the Human Rights Act and the Charter.
[9] Here is the text of paragraphs 2 to 4 of the statement of claim:
[translation]
2. The plaintiff was lawfully a member of the Canadian Forces from January 1, 1962 to October 9, 1969, and from September 28, 1991 to March 31, 1999;
3. On March 31, 1999, the plaintiff was retired pursuant to the mandatory retirement age provisions under article 15.17 of the Queen's Regulations and Orders for the Canadian Forces;
4. The mandatory retirement age provisions of the Queen's Regulations and Orders for the Canadian Forces and section 15(1)(b) of the Canadian Human Rights Act, under which the Queen's Regulations and Orders for the Canadian Forces are explicitly adopted; and section 15(1)(c) are contrary to sections 3 and 7 of the Canadian Human Rights Act and sections 1 and 15 of the Canadian Charter of Rights and Freedoms;
[10] Although the actual process by which the plaintiff was retired - probably the sending of a letter to that effect - was presumably handled by an official of the defendants, the statement of claim is to all intents and purposes silent as to what action was taken by this official, this "federal board, commission or other tribunal".
[11] This action was consciously taken, the plaintiff argues, because, as his counsel noted, it follows from the scheme of paragraphs 2 to 4 of the statement of claim cited above that the source of the plaintiff's retirement is found in the statutory provisions and not in the actions of a federal board, commission or other tribunal which, when all is said and done, simply applied the actual text of the QR & O. The plaintiff does not denounce any negligent action of any official. He is attacking the statutes.
[12] In terms of remedies, the plaintiff is therefore claiming, in the prayer for relief of his action, some declarations that the statutes are inoperable, and his reinstatement within the Canadian Forces and damages for loss of salary since his retirement.
[13] I accept this perception of the plaintiff's action for the purposes of this analysis.
[14] The foregoing context is crucial in dismissing the grounds for striking out cited by the defendants.
Analysis
[15] The first reason for striking out raised by the defendants is that the plaintiff's action was out of time at the date of its filing, March 28, 2002, given the expiration at that date of the six months period stipulated in subsection 269(1) of the National Defence Act, R.S.C. 1985, c. N-5, as amended, under which the QR & O are adopted.
[16] Subsection 269(1) reads:
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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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[17] The plaintiff argues that subsection 269(1) does not apply in this case, for two reasons.
[18] The plaintiff argues, first, that this is a case of ongoing harm, i.e. his non-employment, which has continued day after day since his retirement. Accordingly, any limitation period begins to run again each day.
[19] It is clear, in my opinion, that this argument cannot be accepted. As it was held in Scaglione v. McLean, [1998] O.J. No. 800, at page 6 of 7 (the Scaglione decision), a judgment on subsection 269(1) to which we shall have occasion to return:
While there may be ongoing harm here, the limitation period in s. 269(1) has expired. The continuance of an injury or damage in that provision refers to continuing acts in breach of a duty, not the ongoing effects on a single act in the past: Ihnat v. Jenkins, [1972] 3 O.R. 629 at p. 633, 29 D.L.R. (3d) 137 (C.A.), Skewes v. Children's Aid Society of Hamilton-Wentworth (1982), 38 O.R. (2d) 578, 138 D.L.R. (3d) 124 (H.C.J.). Here, the act complained of occurred in 1982.
[20] Apart from what is said about subsection 269(1) itself, the reasoning in this extract is directly applicable here. The one and only act here that is relevant to the calculation of any limitation period is March 31, 1999.
[21] However, the plaintiff's second argument concerning the inapplicability of subsection 269(1) in this case is of much greater weight, to my way of thinking.
[22] 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).
[23] I think the plaintiff's approach has some merit at this stage. The Boulay decision and the cases cited therein hold that the Crown may not directly rely on subsection 269(1) of the National Defence Act, supra.
[24] The Scaglione decision, in the first place, takes a similar position. At page 3 of 7, the Court states, after quoting subsection 269(1):
There is no doubt that the Crown cannot claim the direct protection of this section of the Act. The Interpretation Act, R.S.C. 1985, c. I-21, provides that an Act does not bind the Crown unless it is expressly referred to therein. The Nova Scotia Court of Appeal in R. v. Canada (Minister of National Defence) (1993), 125 N.S.R. (2d) 208, 349 A.P.R. 208, held that s. 269(1) of the National Defence Act does not, by its terms, bind the federal Crown; rather, the section was meant to protect military personnel from certain actions and proceedings.
[25] However, in this judgment the Court adds a nuance that is not discussed in Boulay, namely that the Crown, in appropriate circumstances, may, through the effect of paragraph 24(a) of the Crown Liability and Proceedings Act, supra, benefit from any defence that would be open to one of its allegedly negligent employees if such an employee were sued in his or her personal capacity. In this sense, then, the limitation period that an official could cite in theory may be passed on to the Crown to its advantage essentially.
[26] However, in this case the statement of claim does not indicate in any way that the Crown is being sued for a fault committed by one of its officials. The dynamic here is therefore different from the one in Scaglione and the defendants cannot avail themselves in this case of subsection 269(1) via paragraph 24(a) of the Crown Liability and Proceedings Act.
[27] This first ground of striking out cannot succeed, therefore, since at the very least its merit is not established plainly and obviously.
[28] The second ground of striking out raised by the defendants is that the plaintiff should have presented his conclusions seeking declarations of inoperability and reinstatement in the context of an application for judicial review and not as an action.
[29] It is clear that even before he can claim compensation and reinstatement, the plaintiff will first have to obtain his declarations of inoperability.
[30] These claims for declarations, as discussed previously, are directed against statutory provisions and they are therefore declarations directed against the Crown.
[31] Now, it is trite law that the Crown is not a "federal board, commission or other tribunal" (see M.N.R. and The Queen v. Creative Shoes Ltd., [1972] F.C. 993 (at p. 999), application for leave to appeal to the Supreme Court dismissed, [1972] F.C. 1425 (at p. 1429); Quasar Helicopters Ltd. v. The Queen, [1983] 1 F.C. 536 (at pp. 538-39) and Robertson v. R. (1986), 3 F.T.R. 103).
[32] On the other hand, the Federal Court Act, R.S.C. 1985, c. F-7, in section 2, defines the word "relief" (réparation) as including a declaration. Under subsection 17(1) and section 48 of that Act, a claim for a declaration against the Crown is instituted through an action.
[33] This means, then, that the initial remedies the plaintiff must obtain, the declarations of inoperability, may be obtained in the circumstances by way of an action.
[34] As to the damages sought by the plaintiff, this remedy can definitely be obtained only through an action.
[35] Of course, the plaintiff's claim for reinstatement certainly pertains more to a remedy that might possibly be obtained through an application for judicial review.
[36] Faced with a process such as this, in which the plaintiff's initial remedies pertain more to an action and one remedy pertains to an application for judicial review, Mr. Justice Décary of the Federal Court of Appeal, in Sweet et al. v. Canada (1999), 249 N.R. 17, at pages 25 and 26, made the following comments in regard to the appropriate attitude and overall approach to be taken in such a situation:
[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.
[37] Since in this case the initial remedies can be obtained through an action, I do not think it is necessary to strike out the reinstatement remedy. It will follow the principal remedy for determination and the Court will decide it on the merits within the framework of the disposition of the action.
[38] Thus it can be said that for the purposes of this motion, at least, it is certainly not plain and obvious that the proceeding adopted by the plaintiff, that is, the action, is mistaken and that this action must therefore be struck out.
[39] The defendants' motion to strike out is therefore not receivable, since neither ground for striking out can be allowed under the applicable test on a motion to strike out under Rule 221(1)(a) of the Rules. In view of the preceding reasons, it is unnecessary to consider the possibility raised by the defendants in their written representations of converting the present action into an application for judicial review.
[40] However, there is cause to find in favour of the final alternative remedy cited by the defendants and to order that this proceeding be managed henceforth as a specially managed proceeding. Accordingly, counsel for each party shall, within twenty days of the date of the order accompanying these reasons, submit to the Court - on a joint basis, to the fullest extent possible - a schedule that will cover the measures to be taken subsequently in this proceeding.
[41] This schedule shall, probably as an initial stage, provide a deadline for the plaintiff to serve and file a reamended statement of claim in which he shall identify precisely in his statement of claim the statutory and regulatory provisions that he is attacking, the precise nature of his attack and the statutory or Charter provisions that serve as support or justification for the relief he is seeking.
[42] This exercise should have been carried out by the plaintiff following an initial order along these lines dated July 8, 2002. In view of this failure and the fact that the plaintiff's record in reply on this motion was filed very late, the defendants' motion will, as indicated previously, be dismissed but without costs.
Richard Morneau
Prothonotary
Montréal, Quebec
November 1, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021101
Docket: T-541-02
Between:
ANDRÉ TREMBLAY
Plaintiff
and
HER MAJESTY THE QUEEN
and
ATTORNEY GENERAL OF CANADA
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-541-02
STYLE: ANDRÉ TREMBLAY
and
HER MAJESTY THE QUEEN
and
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 21, 2002
REASONS FOR ORDER OF MR. RICHARD MORNEAU, PROTHONOTARY
DATED: November 1, 2002
APPEARANCES:
Alain Tremblay for the plaintiff
Chantal Sauriol for the defendants
Marie-Ève Sirois-Vaillancourt
SOLICITORS OF RECORD:
Ouellet, Nadon et Associés for the plaintiff
Montréal, Quebec
Morris Rosenberg for the defendants
Deputy Attorney General of Canada
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