Date:
20090402
Docket:
T-1683-02
Citation:
2009 FC 341
[ENGLISH
TRANSLATION]
Ottawa, Ontario, April 2, 2009
PRESENT:
Madam Prothonotary Tabib
BETWEEN:
PATRICK
BERNATH
Plaintiff
and
HER
MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1]
This
is a motion by the plaintiff seeking an order that the defendant pay him
interim costs to allow him to bring this action to trial.
[2]
For
the following reasons, notwithstanding great sympathy for the plaintiff’s
circumstances and the tragic events of which hew as a victim, I find that the
plaintiff does not meet the established criteria for granting this exceptional
remedy.
Procedural background
[3]
Mr.
Bernath is representing himself. Given his lack of legal training, the
difficulties associated with his post-traumatic stress and the complexity of
the factual and legal issues involved, Mr. Bernath is conducting this
litigation and representing himself intelligently, coherently and with some
ability. As case manager, I have noted the great thoroughness with which Mr.
Bernath’s motion files and appearances have been prepared, as well as his
concern for following procedural rules and understanding the applicable legal
principles. If we can find any fault, however, it must be noted that problems
with evidence, sometimes gathered at the last minute, the lack of synthesis and
the inability to distinguish between the nuances of the applicable legal
principles bely the plaintiff’s lack of legal training and emotions.
[4]
Mr.
Bernath, a former member of the Armed Forces, suffered severe trauma during a
mission to Haiti. He does not fault his superiors or military authorities for
the onset of his post‑traumatic stress syndrome resulting from that
trauma. However, he alleges that the subsequent refusal or failure by military
authorities to provide him with or give him access to appropriate medical care
are systemic in nature and constitute an infringement of the fundamental rights
guaranteed by the Canadian Charter of Rights and Freedoms (the “Charter”).
In his action, he is seeking damages from the Crown under section 24 of the Charter.
[5]
Although
the statement of claim (both the original and the subsequent amendment) use the
format and vocabulary of a liability action, it is clear and acknowledged by
the parties that the only cause of action put forth by the plaintiff is based
on the infringement of a Charter right and the authority of the courts
to order an appropriate and just remedy under section 24 of the Charter.
The fact that no liability action is available for injuries or conditions for
which a pension is paid (which the plaintiff receives for his post-traumatic
stress syndrome) has also been affirmed by the Federal Court of Appeal in Dumont
v. Canada, [2004] 3 F.C.R. 338, 2003 FCA 475.
[6]
The
plaintiff, who was initially part of a group of some 25 veterans who all filed
separate actions but were represented by the same counsel, left the others and
continued to pursue his case on his own in 2007. Since then, the proceedings
have moved through the stages of the closing of pleadings, the disclosure of
evidence and the pre-trial conference. The trial, scheduled to last 10 weeks,
will begin on September 14, 2009. When the motion was heard, the approximately
24 other cases of former military members had not moved beyond the stage
of the amended statement, but were, however, in a process of mediation under
the auspices of the Court.
The applicable law
[7]
It
is well-established, since the Supreme Court decision in British Columbia v.
Okanagan Indian Band, [2003] 3 S.C.R. 371, that the courts have the
discretion, in exceptional circumstances, to order the payment of interim
costs.
[8]
As
the basis of the plaintiff’s action is the alleged infringement of Charter
rights, the two parties have correctly characterized it as a public law case -
as defined by the Supreme Court in Okanagan. The parties are therefore ad
idem that the conditions that must be met for interim costs to be awarded
are as follows: as summarized in Okanagan:
1. The party
seeking interim costs genuinely cannot afford to pay for the litigation, and no
other realistic option exists for bringing the issues to trial - in short, the
litigation would be unable to proceed if the order were not made.
2. The claim
to be adjudicated is prima facie meritorious; that is, the claim is at least
of sufficient merit that it is contrary to the interests of justice for the
opportunity to pursue the case to be forfeited just because the litigant lacks
financial means.
3. The issues
raised transcend the individual interests of the particular litigant, are of
public importance, and have not been resolved in previous cases.
[Okanagan,
at para 40]
[9]
It
must also be noted that each and every condition must be met, and that, even
when they are met, the court has the discretion to award or refuse interim
costs (see Okanagan, par. 41; Little Sisters Book and Art Emporium v.
Canada (Commissioner of Customs and Revenue), [2007] 1 S.C.R. 38,
at para 72; Vail v. Prince Edward Island, [2008] P.E.I.J. no. 32, at
para 13).
[10]
Regarding
financial resources, the Supreme Court noted in Little Sisters that the
plaintiff must satisfy the Court that all other funding options have been
exhausted, including credit, fundraising, contingency fee agreements, etc. and
that the Court must consider the potential cost of the litigation and the
evidence submitted in support of the cost estimates in determining whether the
litigant is impecunious to the extent that interim costs are the only viable
option (Little Sisters, at para 40 and 68 to 70).
[11]
Regarding
merits, at first glance, jurisprudence clearly cautions the Court against
requiring the demonstration of exceptional merits, or applying an overly strict
condition, for fear of prejudicing the outcome of the application. However, the
majority opinion in Little Sisters notes that this criterion is conditioned
by the need to consider the interests of justice, such that “mere proof that
one’s case has sufficient merit not to be dismissed summarily” is not enough. It
must also be noted that, in Little Sisters, the Supreme Court found
compelling the lack of prima facie evidence of the existence of
statements that must be demonstrated to make the case one of public importance
(see para 54 to 56).
[12]
In
closing, and continuing on the topic of the requirement of a case of public
importance, the Supreme Court clarified that “[i]t is in general only when the
public importance of a case can be established regardless of the ultimate
holding on the merits, that a court should consider this requirement from Okanagan
satisfied.” (Little Sisters, at para 66).
Application of the law to the
facts
(a) Lack of resources:
[13]
The
plaintiff is not indigent, quite to the contrary. Although not wealthy, the
evidence before me shows that Mr. Bernath receives a disability pension from
the Department of Veterans Affairs of close to $40,000.00 per year,
non-taxable, as well as disability benefits from the Quebec Pension Plan of
just over $9,000.00 per year, for a net annual income of $48,486.00. Mr.
Bernath is also the sole shareholder and director of his photography business, Agence de Photo
Illustrade
Inc. The financial statements of that business were not submitted as evidence,
and Mr. Bernath’s income tax returns indicate that his work as a photographer
is not lucrative, is simply therapeutic for him, and that the minimal income
from the agency is entirely reinvested in the period renewal of his
photographic equipment. The fact remains that the photography cannot be set
aside as a possible source of income for Mr. Bernath, and that the market value
of the equipment alone is estimated by Mr. Bernath at $15,000.00. Mr. Bernath’s
personal balance sheet as of October 2008, incomplete because it does not
include a description of the nature of the [translation] “other personal assets”
assessed at $288,000.00, nonetheless shows a net worth of $73,828.40.
[14]
Mr.
Bernath argues that, like the legislative provisions that dismiss military
disability pensions from the calculation of taxable income, the Court should
not consider that disability pension income in assessing the plaintiff’s
financial resources regarding this motion. Mr. Bernath argues that it was held
by the Honourable Noël J. in Bernath v. R, 2007 FC 104, that Canadian
Forces Grievance Authority is not a court of competent jurisdiction to decide
an infringement of Charter rights or the appropriateness of granting
relief under section 24 of the Charter. Thus having no access to a
competent grievance mechanism, military members whose fundamental rights have
been infringed have no other recourse but to turn to the common law courts.
Forcing such military members, victims of infringement of their health and
their fundamental rights, to use the funds intended as compensation for their
sacrifices to have access to justice is, in itself, an injustice.
[15]
I
will not comment on the implied assertion in that argument, to say the least
surprising, that access to an administrative process to determine and decide
allegations of infringement of Charter rights is apparently a
quasi-fundamental right, and that the obligation to turn to the common law
courts to argue such rights is apparently an anomaly or injustice. To dismiss
the essence of Mr. Bernath’s argument, it need simply be noted that granting
interim costs is a last resort and that the very clear criteria set out in Okanagan
expressly refer to the genuine lack of means, a lack of realistic sources of
funding and thus, the litigant’s inability to proceed without the order sought.
As soon as a sufficient source of income is demonstrated, there is no longer a
true inability to pay or a lack of realistic sources of funding. Following the
plaintiff’s reasoning would see the Court weighing the reasonability of the
litigant’s desire to prioritize the preservation of certain resources,
nonetheless available, over the exercise of his or her right to take legal
action. An exceptional measure and a last resort, to only be granted when the
need is clearly established, the discretion to award interim costs would become
an alternative source of funding, no longer only available to avoid injustice
of a case with merit and of public interest simply being able to proceed, but
also to avoid of some litigants having to compromise sources that are available
to them for that same purpose.
[16]
As
stated by the majority of the Supreme Court in Little Sisters:
Quite unfortunately, financial
constraints put potentially meritorious claims at risk every day. Faced with
this dilemma, legislatures have offered some responses, although these may not
address every situation. Legal aid programs remain underfunded and overwhelmed.
Self-representation in courts is a growing phenomenon. Okanagan
was not intended to resolve all these difficulties. The Court did not seek to
create a parallel system of legal aid or a court-managed comprehensive program
to supplement any of the other programs designed to assist various groups in
taking legal action, and its decision should not be used to do so.
(at para 5)
[17]
That
said, Mr. Bernath’s pension income and other assets that he seems to be able to
dispose of would not, on their own, prevent the Court from considering his
application for interim costs. Indeed, the Supreme Court stated the following
in particular, in Little Sisters:
If the plaintiff cannot afford all costs of the
litigation, but is not impecunious, the plaintiff must commit to making a
contribution to the litigation.
(at para 40)
[18]
Hence
the need for the Court to assess the plaintiff’s capacity to complete the case
without the order being sought in light of the probable costs of the
litigation.
[19]
Unfortunately,
the plaintiff did not submit any evidence in this regard. The only information
available to the Court are Mr. Bernath’s submissions, unsworn, given at the
hearing on the motion, that he must pay the cost of subpoenas for several
witnesses (and again, the defendant indicated that she was prepared to serve
several of them herself) and the contribution to the parties’ fees for a
lengthy proceeding (section 2 of Tariff A), that he has already taken on debts
to pay the fees of an accounting expert ($5,000.00), that he is still in debt
to the psychiatric expert for the preparation of his report ($7,500.00), and
that he expects to disburse $15,000.00 to ensure that those two experts are at
the proceeding. Although those amounts were established by evidence, I find it
difficult to see how the resources available to the plaintiff would leave him
unable to fund those costs. The plaintiff submitted no evidence that he has
tried to obtain a loan, whether from a financial institution or a close friend
or family, to make deferred payment arrangements, or to do fundraising among
former military members, for whom he nonetheless presents himself as champion. He
simply stated at the hearing, without more detail, that he is already
[translation] “indebted to the maximum” and that “his debt ratio” has increased
in the last two years by “$40,000.00”, while his balance sheet shows more than
sufficient positive assets to pay the costs that he alleges are required, and
that the pension benefits that he receives are stable and foreseeable.
[20]
Regarding
the costs of representation by counsel, I do not need to examine whether or not
it is reasonable for Mr. Bernath to have left the group of other military
members and to have thus renounced the possibility of sharing the costs of an
eventual proceeding with that group. It must simply be noted that the plaintiff
plans to continue to represent himself, but plans to use part of any interim
costs awarded to him to pay for the services of legal counsel specializing in Charter
issues, to assist him in preparing and presenting constitutional arguments. Here
again, the plaintiff did not submit any evidence for assessing the cost of that
measure. The plaintiff also acknowledged at the hearing that he has not yet taken
steps to approach legal counsel to that end, and therefor has no way of
estimating the costs or the feasibility.
[21]
It
is entirely premature, for the purposes of interim costs, to consider the
possible costs of such counsel before it is even determined that such an expert
in constitutional law would be amenable to that exercise. Without prejudging
the issue, it nonetheless seems that, although it is common to see counsel
specializing in a field of law act as an advisor for another counsel during a
proceeding, such an arrangement between counsel and a lay litigant is unusual. One
could even wonder if a counsel would agree to formally appear to argue at a
proceeding on behalf of a lay client without having any other control or
responsibility regarding the strategy for the proceeding or the introduction of
evidence.
[22]
Regardless,
even if that the plaintiff had met the conditions for authorizing the awarding
of interim costs, including the demonstration of public importance, the very
importance of the case and the public interest in ensuring that public funds used
to fund the plaintiff’s case are used with care would have required that the
Court ensure that the case was adequately presented, and thus that the case,
including the evidence needed to support the legal argument, was prepared and
presented by qualified counsel.
[23]
Finally,
it must be noted that the evidence submitted by the plaintiff does not satisfy
me that he has done everything possible to ensure that he has the services of
counsel apart from his previous counsel without being awarded interim costs. The
evidence submitted does not establish that the fact that the plaintiff and two
other members of the group took steps unsuccessfully in 2006, when they were
still represented by Mr. Ferron, to find another counsel. It must be noted that
the agreement with Mr. Ferron, which still seemed to be in effect at that time,
was one of conditional fees, that the evidence only shows a firm’s refusal to
take on the case pro bono (i.e. without conditional fees) and that no
other steps seem to have been taken since the case was withdrawn from Mr.
Ferron to try to find and retain the services of counsel under a fee agreement.
[24]
In
conclusion, the plaintiff has not discharged his burden of convincing the Court
that he has exhausted all funding options, that he truly does not have the
means of paying the costs of the litigation or that he would be unable to take
legal action without the order sought.
(b) The merits at first
glance
[25]
The
plaintiff’s amended statement contains certain allegations that he should not
have been deployed to Haiti due to a shoulder injury, that the mission in Haiti
was poorly planned, that the training he was given to prepare for the Haiti
mission was deficient, that the medical follow-up promised for his shoulder in
Haiti was not provided, and that his shoulder injury was aggravated by the
failure to respect the medical restrictions to which his participation in the
Haiti mission was subject. Despite this, neither the evidence submitted in
support of the plaintiff’s motion, nor his written or oral arguments referred
to those allegations other than marginally. More specifically, while the
deadlines for filing medical expertise have passed, the plaintiff did not
submit any medical expertise supporting his allegations regarding that shoulder
injury. Thus, as no prima facie evidence was submitted regarding the
merits of that portion of the action, I will not examine it further.
[26]
The
statement also contains various allegations regarding the processing of the
grievance filed by the plaintiff concerning events detailed in the application.
Once again, the plaintiff’s motion record is silent in this regard. Regardless,
given the principles set out in Canada v. Grenier [2006] 2 F.C.J. 287,
2005 FCA 384, it seems at first that any irregularity in the processing of the
grievance could not validly form the basis, in whole or in part, of the
plaintiff’s action unless there has been a prior application for judicial
review. Those allegations therefore need not be discussed further.
[27]
As
indicated above, the essence of the plaintiff’s allegation is related to the
alleged “systematic” refusal by the Armed Forces to recognize and treat mental
illness in soldiers and the resulting discrimination, which the plaintiff
claims was characterized in his case by denigration by his superiors, refusal
to access the physician of his choice, the inadequate treatment prescribed, refusal
of treatment - in the form of refusal to respect the sick leaves and work
restrictions prescribed - and acceptance of his application for release, despite
medical opinions that he was medically unfit.
[28]
Okanagan requires that the
plaintiff demonstrate that his case is prima facie meritorious. He must
therefore at least demonstrate that the factual basis of his action is likely
to be proven Although the exercise must be more than simply assuming the
alleged facts to be true, it certainly does not require the weighing of
contradictory evidence that may be submitted by the parties, or that proof be
required for each alleged fact. In my view, the plaintiff had to at least
establish the probable existence of evidence that would establish the main
facts underlying his action. In this case, Mr. Bernath had to satisfy the Court
that he would be able to not only establish that he was the subject of some
denigration, inadequate treatment and alleged refusals, but also that those
inappropriate treatments were the result of “systematic” conduct - whether
through the application of general or institutional rules, policies,
guidelines, instructions or orders or through the implementation of systems and
procedures that had that result.
[29]
Beyond
the factual basis, the plaintiff had to demonstrate that those facts give rise
to a valid legal argument, that they constitute a deprivation of his life,
liberty or security, and then that that deprivation is contrary to the
principles of fundamental justice.
[30]
I
have carefully examined the evidence submitted by the plaintiff. More
specifically, I have carefully read the very detailed and supported report from
the psychiatrist Dr. Côté, as well as all documents included with it. At the
hearing, Mr. Bernath confirmed that that report and its supporting documents
fully presented his version of the facts and what the evidence that he plans to
present during the proceeding. I took that version of the facts as likely to be
proven and as the most favourable for the plaintiff. I must note that my
conclusions do not at all reflect the possible or probably outcome off the
proceeding. Any or all of the evidence that Mr. Bernath plans to present could
be inadmissible; it could be contradicted or not believed; the problems that I
note could be overcome; the trial judge could draw different conclusions. In
short, my analysis is limited to assessing the prima facie merits
of the case; it cannot determine the actual existence of any state of facts or
any conclusions that can be drawn; it does not at all prejudge the case or any
portion of it.
[31]
Based
on a careful examination, following are the facts that, prima facie,
the evidence establishes and those that it entirely fails to establish:
September 1997
[32]
The
traumatic event occurred on September 9, 1997 in Haiti. the post-traumatic
stress syndrome that the plaintiff still suffers from was caused directly by
that event.
[33]
Mr.
Bernath first consulted a physician, Dr. McLeod, regarding the matter in Haiti
on September 16, 1997 and again on September 25, 1997. He also saw a social working
in Haiti. Mr. Bernath was scheduled to return home on October 2 and Dr. McLeod
made arrangements for Mr. Bernath to bee seen by a physician and social worker
as soon as he returned. Dr. Côté’s expert report did not identify any error or
insufficiency in the treatments provided to Mr. Bernath in Haiti.
October 3 to November 27, 1997
[34]
When
he returned to Canada on October 3, 1997, Mr. Bernath met with a social worker
and a physician, Dr. Cooper. Dr. Cooper diagnosed post-traumatic stress and, on
October 9, 1997, requested a psychiatric consultation with Dr. Pépin. Mr.
Bernath was followed regularly by Cr. Cooper and the social worker until
November 27. Although the expert report by Dr. Côté finds that the therapy
provided during that period did not seem to have improved Mr. Bernath’s
condition, he also did not say anything against the treatments provided to Mr.
Bernath by the social worker and Cooper. Mr. Bernath met with the psychiatrist,
Dr. Pépin, On October 28, 1997 and saw him again during that period on
November 4, 1997. In October, Dr. Pépin confirmed the diagnosis of
post-traumatic stress syndrome and prescribed certain treatments. Dr. Côté did
not question the appropriateness of the treatments prescribed by Dr. Pépin
during that period.
November 27, 1997 to January 23,
1998
[35]
It
was during this period, based on the evidence submitted, that there began to be
problems with the plaintiff’s treatment. Dr. Cooper saw Mr. Bernath on November
24 and 27. He extended the sick already prescribed for Mr. Bernath since his
return from Haiti by another month, as well as the treatment that had already
begun. As there was difficulty establishing a relationship between Mr. Bernath
and the social worker, Dr. Cooper took note to find another social worker, who
would be a psychologist specializing in post-traumatic stress. Dr. Cooper also
informed Mr. Bernath on November 27 that, is was common practice, his file
would be retransferred to the physician in his unit, Dr. Deilgat, as he had now
returned from Haiti.
[36]
That
same day, on November 27, 1998, there was a multidisciplinary meeting with the
social worker, Dr. Deilgat and the psychiatrist, Dr. Pépin, to discuss, Mr.
Bernath’s case, among other things. The meeting was held and decisions were
made regarding Mr. Bernath’s future treatment, despite the absence of Dr.
Cooper, who had been Mr. Bernath’s attending physician until then for his
post-traumatic stress, and despite the fact that Dr. Deilgat had not yet met
with Mr. Bernath since his PTSS diagnosis. It would seem that Dr. Deilgat had
been the subject of a complaint to the College of Physicians’ Ethics Committee
regarding decisions he made under those circumstances , and that blame was
placed on him for it. The notes taken by the social worker at that meeting
indicate that Dr. Deilgat apparently decided to recommend that Mr. Bernath
gradually return to work. Thus, the sick leave previously prescribed by Dr.
Cooper was subsequently cancelled.
[37]
Mr.
Bernath told Dr. Cooper that he wanted to continue being treated by him rather
than Dr. Deilgat, and to have his sick leave restored. Dr. Cooper sent a memo
to Dr. Deilgat in that regard, indicating that he was prepared to resume the
treatment and to restore the leave, as long as the unit’s commanding officer
approved Mr. Bernath’s treatment by a physician other than the one in his unit.
Although it does seem that Dr. Deilgat received that note, there is a complete
lack of evidence of what was done about that request to change attending
physicians. Questioned about this at the hearing, Mr. Bernath admitted that he
had no idea whether Dr. Deilgat or anyone sent a request in that regard and,
therefore, whether it was or would have been granted or refused by the
commanding officer. Dr. Deilgat is therefore still Mr. Bernath’s de facto
attending physician.
[38]
December
8, 1998 marked the first clinical interview between Mr. Bernath and Dr.
Deilgat. It did not go well, to say the least. Dr. Deilgat saw Mr. Bernath’s insistence
on being followed by Dr. Cooper – and on having his sick leave restored – as
manipulation and told him so. The sick leave was not restored. However, as Mr.
Bernath had annual leave that he had to use, he remained on annual leave until
mid-January 1998. Dr. Deilgat indicated that the medication that was previously
prescribed would be gradually reduced after he returned. It also seems that Dr.
Deilgat took steps to have Mr. Bernath followed, again when he returned, by
another social worker, this time a social worker whose mandate would be to
examine a narcissistic personality disorder perceived by Dr. Deilgat.
[39]
The
expert psychiatrist retained by the plaintiff is highly critical of Dr. Deilgat’s
conduct. He sees the loss of the relationship with Dr. Cooper, the fact that
Dr. Deilgat called him a manipulator without sufficient clinical data, the
cancellation of the sick leave (and the ensuing obligation to replace it with
annual lave), the total lack of treatment during the period of annual leave,
the lack of psychological follow-up for PTSS and the psychological follow-up
for a personality disorder without sufficient basis to be major stressors for
Mr. Bernath that deteriorated his condition. As those stressors were the main
result of the medical intervention that Mr. Bernath received, Dr. Dr. Côté
concludes that they are serious failures and gaps in treatment.
[40]
Mr.
Bernath returned on January 14, 1998. He saw Dr. Pépin on January 15, 1998. Dr.
Pépin again prescribed medication and recommended that Mr. Bernath return to
work, but for eight hours per day, with no overtime. Although Dr. Côté is
critical of the fact that Dr. Pépin issued a diagnosis at that time of mild
post-traumatic stress, rather than severe, he does not seem to be otherwise
critical of the medication prescribed or the limited return to work.
[41]
At
that time, Mr. Bernath’s unit was in Montréal, deployed to deal with the ice
storm hitting the area. Mr. Bernath was assigned to the rear guard. On January
22, 1998, a Thursday, he was informed that he would be working Saturday and
Sunday that weekend. Mr. Bernath raised the medical restrictions. The
commanding officer of the rear guard called Dr. Dr. Deilgat to clarify whether
the restrictions excluded weekend work. Dr. Deilgat saw no contraindication,
and the order to work on the weekend was maintained. The next day, on January
23, 1998, Mr. Bernath applied for his release. Here again, Dr. Côté cited the
stress of these events as factors that contributed to the deterioration of the
plaintiff’s condition.
January 23, 1998 to
release
[42]
The
medical examination for release was performed on January 27. The medical
officer consulted Dr. Cooper and, together, they questioned Mr. Bernath’s
mental capacity to make the decision to apply for his release. Both physicians
signed a request for a psychiatric consultation in that regard, and Dr. Cooper
recommended 14 days of sick leave. When the recommendation was presented to the
commanding officer of the rear guard, he called Dr. Deilgat: the leave was
refused. A new recommendation for sick leave was made by Dr. Cooper the next
day. This time, it was refused without consulting Dr. Deilgat.
[43]
On
January 29, Dr. Pépin met with Mr. Bernath following a request for a
consultation regarding the mental capacity to apply for leave. Dr. Pépin
recommended that Mr. Bernath to reconsider his decision, but nonetheless
declared him apt to make the decision. Dr. Côté acknowledged that, at that
time, Mr. Bernath did not present any symptoms of psychosis that would hinder
his capacity to make that decision, but expressed the opinion, however, that
the post-traumatic stress symptoms at the time seriously hindered his judgment
and his ability to make that decision. The release process concluded on January
30, 2008. At that time, although the release would not become effective until a
few months later, Mr. Bernath was no longer on active service and his care was
administered by the services of Veterans Affairs. As of February 11, 1998, he
received his medical, psychiatric and psychological care under their auspices,
which Dr. Côté deemed to be adequate.
Other facts, or
generally applicable policies, guidelines, instructions, orders or regulations
[44]
Apart
from the practice mentioned earlier that military members have the physician in
their unit as their attending physician, no other factual element was
identified or announced to establish the existence of a policy, a guideline,
instructions or general orders supporting the theory of “systematic” conduct.
There was reference to investigation reports by the Armed Forces Ombudsman that
allegedly found a culture in which mental illness was seen as a weakness to be
repressed and ignored, rather than an illness to be treated, but those reports
were not before the Court for the purposes of this motion. There was also no
indication whether that culture was translated into tangible or general
policies, guidelines, instructions or orders, or of their scope, as
applicable..
[45]
The
plaintiff finally cited section 16.16 of the Queen’s Regulation and Orders(“QR&O”),
as it read at the time, which stated that the commanding officer had the
discretion to accept or refuse a medical recommendation for sick leave.
Analysis
[46]
If
we can see the failure by Dr. Cooper and Dr. Deilgat to have the commanding
officer authorize Mr. Bernath’s continued treatment by Dr. Cooper to a
[translation] “refusal of access to the physician of his choice”, Dr. Deilgat’s
decision, as attending physician, to change the established treatment plan to
replace sick leave with a progressive return to work, and psychological
follow-up focusing on PTSS by follow-up focusing on a personal disorder as a “refusal
of treatment” and a “failure to provide adequate treatment”, and the decision
by Dr. Deilgat, as attending physician, to interpret differently or to bypass
work restrictions or leave prescribed by other doctors with a “refusal of
treatment”, then the plaintiff has discharged his burden of establishing, prima
facie, that he suffered from those refusals and inadequate treatments and
that they had a serious impact on his health. Personally, I have doubts that,
in the circumstances mentioned above, failure to forward a request for approval
amounts to a refusal, and that changes or disagreements between health care
professionals regarding the appropriate treatment, as questionable as the final
opinion retained may be, truly constitutes a refusal of treatment. However, I
set those doubts aside for the purposes of this analysis. After all, if the plaintiff’s
action were based on Crown liability resulting from personal or professional
negligence by Dr. Deilgat, I would have no hesitation in finding that there was
a prima facie case.
[47]
As
mentioned earlier, the cause of action argued here, however, is not based on
negligence. It requires the demonstration that the inappropriate treatments
suffered by Mr. Bernath were the result of systematic conduct by the Armed
Forces. However, as the facts cited above show very clearly, the only causal
constant in Mr. Bernath’s difficulties is that the decisions in his regard were
made – or not made – in the timely exercise of the duties and responsibility of
the individuals involved, and most often in the exercise of professional
competencies reserved for medical personnel.
[48]
If
treatment by Dr. Cooper was refused, there is no indication that that refusal
was by the commanding officer, or that the practice of assigning treatment of
military members to the unit physician was imposed institutionally. An
exception to that practice was provided for: either Dr. Deilgat personally
failed to forward the application for exemption, or he personally took it upon
himself to refuse it. If treatment was refused, it was the result of the
personal decision by Dr. Deilgat that the leaves, restrictions or treatments
prescribed by others could be bypassed; whether that decision was based on an
opinion or professional negligence, it is clearly not institutional or
systematic. Even the ultimate refusal by individuals in authority to authorize
the prescribed sick leaves or restrictions does not seem to have been based on
or justified by the application of the discretion granted under section 16.16 of
the QR&O, but on the timely opinion of a health care professional. The only
instance of denigration of the plaintiff demonstrated in the evidence is again
the personal aspect of Dr. Deilgat. As for the approval by military authorities
of the application for release, here again, the evidence does not, prima
facie, establish that it was done despite an incompetent medical opinion,
but rather based on a qualified medical opinion. One might challenge the merits
of that opinion, but here again, it would be an attack on a professional opinion,
not an institutional or systematic decision.
[49]
To
conclude, as I do, that the plaintiff did not demonstrate the prima facie
merits of the essential allegations in his action, that the systematic conduct
of the Armed Forces resulted in an infringement of his Charter rights,
does not necessarily mean that the plaintiff was not a victim of injustices or
negligence, that there is no factual basis for the deficiencies, attitudes and
failures criticized by the Armed Forces Ombudsman, or that those deficiencies
would never likely form the basis for a valid action under the Charter.
Quite simply, the plaintiff’s case does not demonstrate any prima facie
or plausible causal relationship between any systematic conduct within the
Armed Forces and the failures or tragic combination of circumstances that
affected the plaintiff.
[50]
I
would also add that, in terms of the law, the plaintiff has still not been able
to identify precisely or even generally the principle of fundamental justice on
which he bases his conclusion that there is an infringement of section 7 of the
Charter. The plaintiff’s reference to Chaoulli v. Québec (Attorney
General), [2005] 1 S.C.R. 791, 2005 SCC 35, is not a sufficient
articulation of the principle of fundamental justice applicable to this case. Chaoulli
does not establish a duty for the Crown to provide medical care. That decision
instead notes that limitations that the Crown may impose on citizens to use
certain care can breach section 7 of the Charter if they are not
consistent with the principles of natural justice. The principle of fundamental
justice identified in that case was the principle that rules of law must not be
arbitrary. The only rule of law raised here is section 16.16 of the QR&O.
As mentioned above, the evidence does not indicate that the plaintiff’s leaves
were refused under that provision, such that Chaoulli would not apply. Moreover,
even if section 16.16 were truly at issue, no reasoning was put forth to
justify how the provisions of that section are arbitrary.
[51]
As
Court of Appeal noted to the plaintiff in its decision on December 13, 2007 (indexed
as R. v. Bernath 2007 FCA 400):
[24] That being said, the respondent should
understand that this is but a procedural and preliminary victory. He will
eventually have to identify precisely the principle of fundamental justice, if
any, on which his position is based. The judgment of this Court in Prentice
v. Canada, 2005 FCA 395 (CanLII), clearly demonstrates that it is not an
easy task.
[52]
It
must be concluded that that task still escapes the plaintiff.
(c) Public
importance of the case:
[53]
Having
concluded that, prima facie, the circumstances that so tragically
affected the plaintiff are specific to him and are apparently the result of
personal failures by certain individuals, it must necessarily follow that the
resolution of this dispute does not extend beyond the personal interests of the
plaintiff.
[54]
The
plaintiff argues with conviction that hundreds of military members are affected
by post-traumatic stress, that their families suffer from it, that that
suffering and the deficiencies in how the Armed Forces treat those soldiers has
been recognized many times in independent investigations, but that the
government still refuses to recognize the problem and take action to resolve
it. The plaintiff argues that it is of public importance that this proceeding be
held to determine the constitutional obligations of Her Majesty the Queen
regarding soldiers whose lives and mental health she puts at risk for the good
of the nation.
[55]
With
great respect for Mr. Bernath and the deepest sympathy that I have for those
military members and their families, I sincerely do not believe that holding
the proceeding desired by Mr. Bernath would resolve this fundamental issue, or
that it would be in the public interest for the exceptional remedy of interim
costs to be used to try to respond to it as part of this action. The
circumstances present in Mr. Bernath’s case are so specific to him, the
individuals involved and their personal actions that it is likely that the
Court cannot, in a useful way for the general interest, consider the role that
that attitude could have played in the alleged institutional failures.
[56]
Mr.
Bernath emphasizes the fact that his efforts and his fight have already
advanced the law. He also cites his grievance and his complaints to the
Ombudsman as leading to the subsequent amendment of section 16.16 of the
QR&O to remove the commanding officer’s discretion to ignore
recommendations regarding medical leave. He notes that it was in that very
action that it was first judicially recognized that the Armed Forces Grievance
Authority is not a court of competent jurisdiction for the purposes of section
24 of the Charter. That may be the case, but those issues are now
resolved, as the plaintiff himself notes. The public importance of certain past
actions does not necessarily guarantee the public importance of pursuing
resulting litigation to the end. That is, among other things, what is seen in
the Supreme Court decision in Little Sisters, in which, despite the
recognized importance of the first litigation involving the plaintiff, the
subsequent resulting litigation was not recognized as representing the interest
needed to award interim costs.
[57]
This
case would only present public interest if Mr. Bernath were able to establish
during the proceedings a causal link between the circumstances that affected
him and the alleged systematic conduct, as it is only with that condition that
the Court would be led to decide the issue of whether the conduct infringed on
the Charter rights. However, as the evidence on record fails to establish
that causal link, it is clear that the public importance of the case has not
been established “regardless of the ultimate holding on the merits”, as
required in Little Sisters.
Conclusion
[58]
As
the plaintiff has failed to meet the conditions for awarding interim costs, his
motion must be dismissed.
[59]
The
respondent asked that he be awarded costs. I do not question the plaintiff’s sincerity
in his efforts and in his belief that his case has merit and is of public
interest. If the plaintiff’s motion had only failed on those aspects, I would
have ordered that costs abide by the result of the case. However, the evidence
submitted by the plaintiff on the issue of his capacity to fund the proceeding
was clearly insufficient and the plaintiff should have realized that those
problems were fatal. For that reason, costs for the motion are awarded to the
respondent.
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