T-2922-92
BETWEEN:
J.L. FRANCOIS VILLENEUVE
Plaintiff
- AND -
HER MAJESTY THE QUEEN, and
THE MINISTER OF NATIONAL DEFENCE,
and THE CHIEF OF THE DEFENCE STAFF
Defendants
REASONS FOR ORDER
(Delivered orally on the Bench
at Vancouver, B.C. on April 30, 1997, as edited)
McKEOWN J.
The plaintiff brings a motion for summary judgment pursuant to Rule 432.1 of the Federal Court Rules. The defendant raised the following preliminary issue. In view of the resolution mechanism that exists through the redress of grievance procedure in the Canadian Forces, is the plaintiff required to pursue a remedy through a statutory mechanism before turning to the civil courts for relief?
Section 29 of the National Defence Act, R.S.C. 1985, c. N-5 (the Act) provides for a grievance procedure except in respect of a matter that would properly be the subject of an appeal or petition under Part IX:
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... 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. |
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Article 19.26 of the Queen's Regulations and Orders creates the grievance procedure authorized by section 29. It provides for a redress of grievance proceeding up the ranks beginning with an oral complaint to the commanding officer, and concluding with the Governor in Council, should the complainant not receive the redress to which he considers himself entitled. Canadian Forces Administration Order 19-32 entitled "Redress of Grievance" contains largely procedural material.
There is no jurisdiction for this Court to hear this matter until the plaintiff exhausts his redress of grievance procedure in the Canadian Forces. I rely on Wetston J. in Pilon v. Her Majesty the Queen (1996), 23 C.C.E.L. (2d) 267 where he states at 269:
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The National Defence Act, R.S.C. 1985, c. N-5, section 29, provides for a redress of grievance procedure wherein members of the military may have any issue adjudicated which deals with "personal oppression, injustice or other ill-treatment" or "any other cause for grievance" ... |
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This Court has held that, where such an expansive resolution mechanism exists, the complainant is required to pursue a remedy through this statutory mechanism before turning to the civil courts for relief. See Gallant v. The Queen in Right of Canada (1978), 91 D.L.R. (3d) 695; and Jones v. Canada (1994), 87 F.T.R. 190.
Wetston J. in Pilon, supra continues at 270:
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... However, the plaintiff does have access to the grievance procedure and is required to avail herself of that procedure. The plaintiff argued that section 29 does not oust the jurisdiction of the civil courts to entertain this action. Plaintiff's counsel relied on a number of cases, for example, McKinley v. B.C. Tel., [1996] B.C.J. No. 1334 (QL); Weber v. Ontario Hydro (1995), 24 O.R. (3d) 358. In my opinion, these cases are clearly distinguishable. The plaintiff must fully utilize the section 29 grievance procedure. If unsatisfied, the plaintiff's recourse is by way of judicial review pursuant to section 18.1 of the Federal Court Act. |
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In the case before me the defendant agreed that the plaintiff, although now a former member of the Canadian Forces, is entitled to use the grievance procedures since the complaint was made while he was still a member of the Canadian Forces.
I am satisfied the procedures under section 29 of the Act provide an adequate alternative remedy; see Operations Officer v. Anderson (1996), 141 D.L.R. (4th) 54 (F.C.A.). If the plaintiff is not satisfied with such proceedings the plaintiff will then have recourse to the courts.
In my view Gustar v. Wedden et al. (1994), 45 B.C.A.C. 55 (B.C.C.A.) and Supplementary Reasons in [1994] B.C.J. 1819, August 9, 1994 (QL), is not applicable since it was an action between members of the R.C.M.P. and, furthermore, the provisions of the legislation governing the R.C.M.P. are different from section 29 of the Act.
The plaintiff is required to pursue a remedy through the statutory mechanism, section 29 of the Act and regulations and orders pursuant thereto before turning to the civil court for relief. Therefore, the motion for summary judgment is dismissed without costs.
"William P. McKeown"
Judge
TORONTO, ONTARIO
May 14, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2922-92
STYLE OF CAUSE: J.L. FRANCOIS VILLENEUVE
- and -
| HER MAJESTY THE QUEEN, and |
| THE MINISTER OF NATIONAL DEFENCE, |
| and THE CHIEF OF THE DEFENCE STAFF |
DATE OF HEARING: APRIL 29, 1997
PLACE OF HEARING: VANCOUVER, B. C.
REASONS FOR ORDER BY: McKEOWN, J.
DATED: MAY 14, 1997
APPEARANCES:
Mr. Duncan Boan
For the Plaintiff
Mr. Gordon P. Macdonald
Commander Randolph J. Gynn, LD, LLB
For the Defendants
SOLICITORS OF RECORD:
Hunt & Boan
201-3185 Tillicum road
Victoria, B.C.
V9A 2B4
For the Plaintiff
Gordon P. Macdonald
Commander Randolph J. Gynn, LD, LLB
567A Johnson Street
Victoria B.C.
V8W 1M3
For the Defendants
FEDERAL COURT OF CANADA
Court No.: T-2922-92
Between:
J.L. FRANCOIS VILLENEUVE
Plaintiff
- and -
| HER MAJESTY THE QUEEN, and |
| THE MINISTER OF NATIONAL DEFENCE, |
| and THE CHIEF OF THE DEFENCE STAFF |
Defendant
REASONS FOR ORDER
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