Twenion v. Canada, docket T-1289-94

Date: 19991025

Docket: T-1289-94

OTTAWA, ONTARIO, OCTOBER 25, 1999

PRESENT:      THE HONOURABLE MR. JUSTICE LEMIEUX

BETWEEN:

     GLEN TWENION

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN

     Defendant

     ORDER

     For the reasons given, it is hereby ordered:

1.      Paragraph 29(a) of the plaintiff's statement of claim is struck. The defendant's motion to strike the remainder of the statement of claim is dismissed. Owing to partial success, no costs are awarded.

2.      The schedule established by Aronovitch P. on June 7, 1999, is varied as follows:

(1)      Affidavit of documents to be completed within thirty days from this decision.

(2)      Discoveries to be completed within 90 days of this decision.

(3)      Pre-trial conference requisition within 120 days of this decision.

    

    

     J U D G E

Date: 19991025

Docket: T-1289-94

BETWEEN:

     GLEN TWENION

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN

     Defendant

     REASONS FOR ORDER

LEMIEUX J.:

INTRODUCTION

[1]      The Deputy Attorney General for Canada, on behalf of the defendant, Her Majesty the Queen (the defendant) moves the Court, pursuant to Rules 369 and 221 of the Federal Court Rules, 1998, for an order striking out the plaintiff's statement of claim and dismissing the action. In the alternative, the defendant seeks an order varying the June 7, 1999 order of Prothonotary Aronovitch varying the established schedule for the filing of affidavits of documents, completion of discoveries and the requisition by the plaintiff of a pre-hearing conference.

[2]      The defendant put forward the following grounds in support of the motion to strike:

(a)      the statement of claim discloses no reasonable cause of action;

(b)      the plaintiff is required to pursue a remedy through the statutory mechanism provided by the National Defence Act. If the plaintiff is not satisfied with the outcome of the final level of decision in this internal grievance process, he is required to pursue a remedy by way of an application for judicial review in this Honourable Court;

(c)      the plaintiff has no claim against the defendant for breach of contract or wrongful dismissal;

(d)      some of the relief which the plaintiff seeks may only be obtained by way of a judicial review application pursuant to section 18.1 of the Federal Court Act.

THE PLAINTIFF'S STATEMENT OF CLAIM

[3]      The plaintiff, Glenn Twenion, states, in his statement of claim, issued on June 1, 1994, at all material times, he was a member of the Canadian Armed Forces (CAF) for a period of over ten years, part of which was as a member of the Reserve Force and five years and ten months with the Regular Force. He held the rank of Leading Seaman at the date of his discharge (release) effective January 5, 1993.

[4]      The plaintiff states during his period of service his annual personnel evaluation reports were consistently excellent; he received two awards and two medals for saving the life of a drowning woman in China in June 1988.

[5]      The plaintiff states, in February 1992, while posted in Washington D.C., a sexual misconduct complaint was made against him by two civilian complainants. The complaint was investigated; a military summary report was completed and the findings of that report established there was no conclusive evidence he behaved as alleged against him. He states no military and/or civilian criminal charges were laid and, as a result of the incident, he was posted back to NDHQ in Ottawa.

[6]      The plaintiff states his anticipated promotion was deferred. In September 1993, he was served with an Intent to Recommend Release as a result of the incident. He objected. He was then served with a Release Approval Message in respect of which he submitted a Redress of Grievance on December 2, 1993. He received an acknowledgement from the Commandant at NDHQ indicating he would be kept informed of the progress in this matter.

[7]      The plaintiff states he was released from his position on January 5, 1993. He says he was released without a hearing in total disregard of the principles of natural justice and "in the face of the highest recommendations by them that he be retained in the Canadian Armed Forces".

[8]      The plaintiff refers to the Canadian Armed Forces Administrative Order (CFAO), 19-36, its policy on sexual misconduct. The plaintiff asserts this administrative order provides a means by which a member may be released administratively if a finding of sexual misconduct is made. The plaintiff states no such finding was ever made in this instance since no charges were ever laid nor any hearing ever held.

[9]      The plaintiff invokes sections 7 and 15 of the Canadian Charter of Rights and Freedoms as well as other sections of the Charter relating to freedom of thought and freedom of association.

[10]      The plaintiff claims the following relief pursuant to section 24(1) of the Charter:

(a)      an order of certiorari quashing the decision to release the plaintiff from the CAF and reinstating him at the rank to which he was to be promoted and at the pay scale to which he would have been entitled had he not been released from the CAF;

(b)      general damages in the amount of $500,000 for the denial of his equality rights under the Charter and to his right to freedom of thought, belief, opinion and expression and his right to freedom of association and compensation for the adverse effects which he has had to suffer and will continue to suffer as a result of the defendant's denial of his rights;

(c)      punitive or exemplary damages in the amount of $100,000;

(d)      interest;

(e)      a declaration that his rights as provided for in the Charter and more particularly in sections 7 and 15 have been denied to the defendant;

(f)      costs; and

(e)      such further and other relief as the Court may deem just.

THE TEST TO STRIKE

[11]      On a motion to strike, the Court must consider whether, assuming that the facts alleged in the statement of claim are true, a cause of action lies. A pleading may be struck out when it is plain and obvious that the pleading discloses no reasonable cause of action and where the case is beyond doubt. See [1980] 2 S.C.R. 735">Attorney-General of Canada v. Inuit Tapirisat of Canada and National Anti-Poverty Organization, [1980] 2 S.C.R. 735.

ISSUE NO. 1 " PARAGRAPH 29(a) OF THE STATEMENT OF CLAIM

[12]      As noted, paragraph 29(a) of the plaintiff's statement of claim requests an order in the nature of certiorari quashing the decision to release the plaintiff from the CAF and an order in the nature of mandamus (presumably) directing reinstatement. The defendant submits that such relief is with respect to a decision of a "federal board, commission, or tribunal" and can only be pursued by way of an application for judicial review because of subsection 18(3) of the Federal Court Act. Such relief may not be pursued by way of an action.

[13]      In reply, counsel for the plaintiff said that "the Plaintiff did not sue for wrongful dismissal, but instead, brought an action for judicial review asking for declaratory relief with respect to the failure by the military to at the very least observe the principals[sic] of natural justice in determining his suitability for employment".

[14]      I am in agreement with counsel for the defendant on this point. The Federal Court Act (the Act) is clear; subsection 18(3) of the Act provides that remedies such as certiorari and mandamus may only be obtained on an application for judicial review made under section 18.1. In Lake Babine Indian Band et al. v. Williams et al. (1996), 194 N.R. 44, the Federal Court of Appeal confirmed the statutory proposition and held that the Court was without jurisdiction to hear and determine an action commenced for such relief. Moreover, an action cannot be converted to, or be treated as, a judicial review application. For this proposition, see Lower Similkameen Indian Band v. Allison, [1997] 1 F.C. 475 (T.D.).

[15]      For these reasons, paragraph 29(a) of the plaintiff's statement of claim is struck.

ISSUE NO. 2 " THE SECTION 29 NATIONAL DEFENCE ACT BAR

[16]      The defendant relies on section 29 of the National Defence Act to strike the plaintiff's damage claim.

[17]      Section 29 of the National Defence Act provides as follows:

29. Except in respect of a matter that would properly be the subject of an appeal or petition under Part IX or an application or appeal under Part IX.1, an officer or non-commissioned member who considers that he has suffered any personal oppression, injustice or other ill-treatment or that he has any other cause for grievance may as a matter of right seek redress from such superior authorities in such manner and under such conditions as shall be prescribed in regulations made by the Governor in Council.

29. Sauf dans le cas d'une affaire pouvant régulièrement faire l'objet d'un appel ou d'une demande en révision aux termes de la partie IX, ou d'une demande ou d'un appel aux termes de la partie IX.1, l'officier ou le militaire du rang qui s'estime lésé d'une manière ou d'une autre peut, de droit, en demander réparation auprès des autorités supérieures désignées par règlement du gouverneur en conseil, selon les modalités qui y sont fixées.

[18]      The defendant urges upon me a number of decisions of this Court; Gallant v. Canada (1978), 91 D.L.R. (3d) 695; Jones v. Canada et al. (1994), 87 F.T.R. 190; Pilon v. Canada (1996), 119 F.T.R. 269; Townsend v. Canada (1994), 74 F.T.R. 21 amongst others for the following propositions:

(a)      service in the CAF does not create any contractual relationship, nor does termination give rise to a cause of action in the civil courts for wrongful dismissal;

(b)      a member who alleges that he has been wrongfully dismissed is limited to the internal appeals and remedies provided by statute and regulations and has no cause of action which can be asserted in the Federal Court Trial Division.

(c)      the specific internal redress process provided for under section 29, The Queen's Regulations and Orders and the redress for grievance scheme contained in CFAO 19-32 is exhaustively comprehensive in terms of the possibilities of redress. The defendant says the plaintiff must pursue these first and, if unsatisfied, the plaintiff's recourse is judicial review and not by way of action.

[19]      In response, counsel for the plaintiff states the plaintiff did not sue for wrongful dismissal and expands on the statement of claim in terms of the plaintiff's sexual preferences. Counsel for the defendant, correctly in my view, objects to this factual expansion. Counsel for the plaintiff states the basis for the plaintiff's claim is termination without regard to the rules of natural justice and breach of his equality rights. In the plaintiff's statement of claim the plaintiff says "because of the policies adopted by the Defendant towards perceived sexual abnormalities and 'misconduct' the Plaintiff has been denied opportunity for career progression".

[20]      The defendant, in the motion to strike, did not provide the Court with any analysis why the Charter would not be applicable either in terms of its substantive provision (sections 7 and 15) or its remedial section (section 24). Counsel for the defendant limited argument to saying that the plaintiff's statement of claim simply fails to adequately specify the nature of any alleged Charter violation.

[21]      I am not satisfied, at this stage of the proceeding, that it is plain and obvious the remainder of the plaintiff's statement of claim reveals no cause of action and for the following reasons:

(a)      the plaintiff still seeks a declaration of Charter rights;

(b)      the plaintiff asserts he submitted a Redress of Grievance on December 2, 1993. He was advised he would be kept informed of the matter. The next thing he knew, he was released "without a hearing and in total disregard of the principles of natural justice". These statements must be taken as true. If they are true, the allegation is that the defendants violated the law, the grievance process was subverted and the plaintiff suffered damages. Without discovery of what happened in the grievance process, the motion to strike is premature;

(c)      the defendant did not make substantive Charter arguments; the plaintiff did not engage in any reply on Charter law. As I see it, the reluctance of the defendant to advance a substantive Charter argument on this motion to strike arose because the factual foundation for doing so did not exist and to the extent it was spelled out in the plaintiff's statement of claim, those facts were against him because they must be taken as true. On this basis, it is not plain and obvious the plaintiff does not have a Charter breach and remedy. The defendant may be able to make out a section 221(a) case at a later stage in the proceedings after discovery. The Rules may provide him other recourses.

[22]      For these reasons, paragraph 29(a) of the plaintiff's statement of claim is struck. The defendant's motion to strike the remainder of the statement of claim is dismissed. Owing to partial success, no costs are awarded.

[23]      The schedule established by Aronovitch P. on June 7, 1999, is varied as follows:

(1)      Affidavit of documents to be completed within thirty days from this decision.

(2)      Discoveries to be completed within 90 days of this decision.

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(3)      Pre-trial conference requisition within 120 days of this decision.

     "François Lemieux"

    

     J U D G E

OTTAWA, ONTARIO

OCTOBER 25, 1999