Date: 20121025
Docket: T-1489-11
Citation: 2012 FC 1243
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, October 25, 2012
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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LOUIS DUFOUR
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR ORDER AND ORDER
I. Introduction
[1]
Louis Dufour (Mr. Dufour) filed the present application for judicial
review under section 18.1 of the Federal Courts Act, RSC 1985, c
F-7, of a decision of the Service Pension Board [SPB] rendered on
August 16, 2011, under the Canadian Forces Superannuation Act, RSC
1985, c C-17 [CFSA]. In its decision, the SPB reversed a previous
decision, dated April 17, 2000, on the reason for Mr. Dufour’s
retirement.
[2]
For
the following reasons, the Court dismisses the application for judicial review
filed by Mr. Dufour.
II. Facts
[3]
Mr. Dufour was a member of the Regular Force of the Canadian Forces
[CF] during the period from September 6, 1988, and March 7, 2000, the day
on which he was released from the CF for Reason 5(f) of Chapter 15 of the Queen’s
Regulations and Orders [QR&Os], namely, that he was “Unsuitable for
Further Service”.
[4]
On November 19, 2007, Colonel F. Bariteau, Director of Military
Careers Administration and Resource Management, under the authority delegated
by the Chief of the Defence Staff, dismissed Mr. Dufour’s request that the
reason for his release be amended to “Medical” (Reason 3 of the
QR&Os).
[5]
Mr. Dufour applied for judicial review of that decision before the
Federal Court in Docket T-76-08.
[6]
In his decision dated September 22, 2008, Justice de Montigny, of the
Federal Court, found that Mr. Dufour had not been given the basic
explanations required to properly understand the reasons for the refusal to
amend the reasons for his release from the CF.
[7]
Justice de Montigny therefore allowed the application for judicial review
and ordered that Mr. Dufour’s record be returned to the CF for a fresh
administrative review of the reasons for his release and a new decision with reasons.
[8]
On January 21, 2010, the delegate of the Chief of the Defence Staff,
in this case, Colonel G.P. Potter, Director of Military Careers Administration,
acted on Justice de Montigny’s decision. He issued a new decision following a
fresh administrative review of Mr. Dufour’s record.
[9]
Colonel Potter upheld the decision to release Mr. Dufour for Reason
5(f). He found that Mr. Dufour’s medical condition, at the time of his
release, did not prevent him from serving in the CF. Consequently,
Mr. Dufour’s release was not based on medical reasons, but rather
Mr. Dufour’s unsuitability for further service (Reason 5(f)).
[10]
Mr. Dufour received this decision in January 2010, but he did not
challenge it through an application for judicial review. Instead, he filed a
motion on December 8, 2010 (Docket T-76-08), in which he submitted
that the respondent had failed to follow the order issued by Justice de
Montigny. Mr. Dufour wanted the Court to impose the implementation of this
decision.
[11]
Prothonotary Rosa Aronovitch dismissed the motion on January 31,
2011, on the ground that Colonel Potter’s decision complied with the order made
in the decision of Justice de Motigny.
[12]
Mr. Dufour appealed the Prothonotary’s decision but did not follow up
on his appeal, and the file was adjourned sine die.
[13]
Mr. Dufour also took steps to have the reason for his retirement for
the purposes of the CFSA reconsidered by the SPB. On April 17, 2000, the
SPB had already issued a decision establishing that the applicant’s retirement
was not based on disability under paragraph 16(1)(d) (previously
paragraph 18(1)(b)) of the CFSA.
[14]
On August 16, 2011, the SPB allowed the request for reconsideration of
its decision dated April 17, 2000, and amended the reason for Mr. Dufour’s
retirement. Mr. Dufour now falls under paragraph 16(1)(d) of
the CFSA (disability). He is therefore entitled to an immediate indexed
medical pension.
[15]
On September 15, 2011, Mr. Dufour filed an application for
judicial review of the SPB’s decision dated August 16, 2011.
III. Legislation
[16]
The relevant provisions from the Canadian Forces Superannuation Act,
RSC 1985, c C‑17 [CFSA], the National Defence Act, RSC 1985,
c N-5, the Queen’s Regulations and Orders for the Canadian Forces
[QR&Os] and the Federal Courts Act, RSC 1985, c F-7, are
reproduced in the annex to the present decision.
IV. Issue and standard of review
A. Issue
•
Does the SPB have the jurisdiction to grant the remedy
sought by Mr. Dufour?
B. Standard of review
[17]
It is trite law that the standard of review applicable to the issue of
jurisdiction is that of correctness. See Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190 at paragraph 59 [Dunsmuir].
V. Parties’
positions
A. Position of
Mr. Dufour
[18]
Mr. Dufour
submits that the decision made by the SPB on August 16, 2011, is binding
on Colonel G.P. Potter, Director of Military Careers Administration. Colonel Potter should
therefore amend the reason for his release from “Unsuitable for Further Service
(Reason 5(f) of the QR&Os) to “medical grounds” (Reason 3(b) of the
QR&Os). He is asking the SPB to amend Colonel Potter’s decision or to refer it to
[translation] “the appropriate
authority” to do so.
B. Respondent’s position
[19]
The respondent submits, first, that the SPB does not have the jurisdiction
to amend the reason for Mr. Dufour’s release. The exclusive jurisdiction
of the SPB is limited to determining the reason for the retirement of regular
members of the CF for the purposes of the CFSA under subsections 49(2) and
49(3) of the CFSA.
[20]
Only the Chief of the Defence Staff or his delegate has jurisdiction to
release a member and determine the official reason for his or her release from
the CF under Chapter 15 of the QR&Os (see QR&Os, Chapter 15,
Reason 3(b)). The respondent is relying on Glavine v Canada (Attorney
General), [2000] FCJ No 359, 185 FTR 175 at paragraph 18, in which the
Honourable Justice MacKay writes as follows:
[18] The decision to release a non-commissioned
officer, as Mr. Glavine was, is vested in the Chief of the Defence Staff
or his designate. . .. The authority is delegated by the Chief of the
Defence Staff to various officers depending upon the release item applicable,
and in this case, for the release under item 3(b) the authority was the “DPCA
[Director Personnel Career Administration] upon recommendation from Career
Review Board (Medical)”.
[21]
The
respondent submits three other reasons for concluding that Mr. Dufour’s
application for judicial review should be dismissed. First, he argues that
Mr. Dufour cannot challenge the decision dated January 21, 2010,
confirming his release from the CF in 2000 for Reason 5(f) since this is not
the decision being challenged by the present application for judicial review. The
respondent is relying on the Supreme Court of Canada’s judgments in Wilson v
The Queen, [1983] 2 S.C.R. 594, and R v Litchfield, [1993] 4 SCR 333,
in support of his position that collateral attacks are not allowed since they
undermine the orderly and functional administration of justice. The respondent
also relies on the rule against collateral attack described in Danyluk v
Ainsworth Technologies Inc, 2001 SCC 44 at paragraph 20 [Danyluk].
[22]
Lastly, he submits
that, under subsection 18.1(2) of the Federal Courts Act, Mr.
Dufour is out of time since he should have filed his application for judicial
review no later than February 21, 2010, if he wanted to challenge the
decision rendered by Colonel Potter on January 21, 2010.
IV. Analysis
[23]
It is important to
recall this Court’s powers in judicial review of federal boards, commissions or
other tribunals. The Court’s jurisdiction is provided at
subsection 18.1(3) of the Federal Courts Act. The Court cannot
order a federal board, commission or other tribunal to make a particular
determination on the merit of a request. It also cannot substitute its own
decision for that of the federal board, commission or other tribunal. In Dunsmuir,
above, at paragraph 28, the Supreme Court stated the following in this
regard:
[28] By virtue of the rule of law principle, all exercises of public
authority must find their source in law. All decision-making powers have legal
limits, derived from the enabling statute itself, the common or civil law or
the Constitution. Judicial review is the means by which the courts supervise
those who exercise statutory powers, to ensure that they do not overstep their
legal authority. The function of judicial review is therefore to ensure the
legality, the reasonableness and the fairness of the administrative process and
its outcomes.
[24]
In short, when
this principle is applied to the case before the Court, the Court must conclude
that even if the SPB had the discretion to change the reason for
Mr. Dufour’s release from “Unsuitable for Further Service” to “medical
grounds”, in the context of a judicial review, this Court
cannot compel it to do so. It is clear that the CFSA does not contain any
provisions allowing the SPB to impose its decision on the Chief of the Defence
Staff, who alone has the power to determine the reasons for the retirement of a
member of the Forces under section 18 of the National Defence Act,
RSC 1985, c N-5, and chapters 1 and 15 of the QR&Os.
[25]
Furthermore, the
Court wishes to emphasize that the SPB’s jurisdiction is limited to determining
the reason for the release of a Regular Force member solely for the purposes of
the CFSA.
[26]
The application for
judicial review filed by Mr. Dufour of a decision of the SPB dated
August 16, 2011, seeks rather to challenge the decision of Colonel Potter,
Director of Military Careers Administration, dated January 21, 2010. The rule set out in Danyluk,
above at paragraph 20, prohibits collateral attacks.
[27]
In
addition, the Court notes that, under subsection 18.1(2) of the Federal
Courts Act, Mr. Dufour is unfortunately out of time to challenge the
decision rendered by Colonel Potter on January 21, 2010, confirming his
release from the Canadian Forces for Reason 5(f) (the applicant’s unsuitability
for further service). Mr. Dufour
should have filed an application for judicial review of Colonel Potter’s
decision no later than February 21, 2010. He failed to do so.
[28]
The Court understands
the position of Mr. Dufour, a man of honour who feels that Reason 5(f) for
his release, namely, Unsuitable for Further Service, undermines his integrity. Mr. Dufour
sensibly points out that the SPB eventually recognized the true reason for his
release from the armed forces, namely, medical grounds. He therefore wonders
why the Chief of the Defence Staff would not do the same. Unfortunately, he is
now out of time for challenging by judicial review the decision made by Colonel
Potter on January 21, 2010, under the Defence Staff designation. Over the
last few years, Mr. Dufour has spent most of his efforts on having his
rights to a pension recognized. He was finally successful.
[29]
The role of this
Court is limited to enforcing the Act, which, in the present matter, does not
permit us to allow Mr. Dufour’s application for judicial review for the reasons
set out in the preceding paragraphs. The Court nonetheless finds that it could
be in Mr. Dufour’s interest to seek an alternative dispute resolution and
to use the services offered by the Canadian Forces Ombudsman.
ORDER
For these reasons, THE COURT
DISMISSES the application for judicial review filed by Mr. Dufour,
without costs.
“André F.J. Scott”
Certified true
translation
Johanna Kratz,
Translator
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