Date: 20070313
Docket: T-1072-06
Citation: 2007 FC 281
Ottawa, Ontario, March 13, 2007
Present:
The Honourable Mr. Justice Harrington
BETWEEN:
CLAUDE BISSONNETTE
Applicant
and
HER MAJESTY THE QUEEN and
ATTORNEY GENERAL OF CANADA and
CANADIAN FORCES GRIEVANCE AUTHORITY
(DEPARTMENT OF NATIONAL DEFENCE)
Respondents
REASONS FOR ORDER AND ORDER
[1]
Corporal
Bissonnette is a member of the Reserve Force of the Canadian Forces. By
definition, the reserve services he provides are temporary in nature. When the
events underlying this application occurred, Mr. Bissonnette was a Class “B”
reservist at the Land Force Quebec Area Training Centre (LFQA TC) in
Valcartier, Quebec. This application for judicial review relates to a claim for
financial compensation following the cancellation of an agreement concerning
reserve services that had been offered to the applicant.
[2]
From
January 14 to March 31, 2002, Corporal Bissonnette was deployed at Valcartier
as a Class “B” reservist at the LFQA TC. Subsequently, specifically on March
22, 2002, this employment was extended to May 5, 2002. On May 8, 2002, Corporal
Bissonnette returned to his employment unit, the 28th Service Battalion (28 Svc
Bn), a reserve unit located in Ottawa; he still serves in this unit at the
Canadian Forces Base in Petawawa. Last, on June 13, 2002, he began the QL 5
training course, which continued until October 4, 2002.
[3]
On
the strength of a written agreement that his employment would last for one
year, until March 31, 2003, Corporal Bissonnette decided to terminate the
employment relationship he still had with his civilian employer, the Ottawa
Commissionaires. In fact, the employment that had been expected to last one
year ended before the agreed time period had elapsed. In short, his file was
mismanaged.
[4]
Accordingly,
he availed himself of the dispute mechanism prescribed by the Act, i.e. the
grievance process set out in the National Defence Act, R.S.C. 1985, c.
N-5. This resulted in the decision of Colonel Wauthier, then Director General,
Canadian Forces Grievance Authority (DGCFGA), dated October 3, 2005, which only
granted the applicant partial financial compensation. In fact, the recommended
compensation is the equivalent of 37 days, whereas the applicant was seeking
almost a year’s worth, i.e. financial compensation equivalent to 329 days of
work. This is an application for judicial review of Colonel Wauthier’s
decision.
[5]
Corporal
Bissonnette contends that he was the victim of an injustice, and that, based on
moral precepts, which are very important to the morale of the troops, when
someone gives their word, he or she must stand by it at all times. Although it
seems clear that the file was mismanaged, a link must be established between
the “fault” committed and the “damage” suffered. Although the Court can
appreciate the frustration Corporal Bissonnette feels towards the Canadian
Forces, which applied internal legal rules, inter alia, that the
agreement signed by the parties was void because the offer of service had not
been posted publicly prior to it being signed and that, in any event, the
nature of the service was temporary in nature and could end at any time. In his
decision, Colonel Wauthier awarded 37 days of financial compensation in lieu of
notice. This decision is fair and does not require the intervention of this
Court.
ISSUES
[6]
The
issues are:
a.
The
nature of the relationship between a soldier and Her Majesty;
b.
The
applicable standard of review.
The nature of the relationship between a soldier and Her
Majesty
[7]
Section
15 of the Act distinguishes between the regular force of the Canadian Forces,
which
consists of officers and non-commissioned members who are enrolled for
continuing, full-time military service, and the reserve force
of the Canadian Forces, which also consists of officers and non-commissioned members, the
difference being that members of the reserve force are only recognized as
serving on a continuing, full-time basis when they are on active service. Based on
recognized legal principles involving Her Majesty in national defence matters,
Corporal Bissonnette is not an employee in the legal sense. As Mr. Justice
Marceau stated in Gallant v. The Queen in
Right of Canada (1978), 91
D.L.R. (3d) 695, at paragraph 4:
Both English and Canadian Courts have
always considered, and have repeated whenever the occasion arose, that the
Crown is in no way contractually bound to the members of the Armed Forces, that
a person who joins the Forces enters into a unilateral commitment in return for
which the Queen assumes no obligations, and that relations between the Queen
and Her military personnel, such as, in no way give rise to a remedy in the
civil Courts. This principle of common law Courts not interfering in relations
between the Crown and the military, the existence of which was clearly and definitely
confirmed in England in the oft-cited case of Mitchell v. The Queen,
[1896] 1 Q.B.121.
[8]
These
principles were echoed by the Federal Court of Appeal in Sylvestre v. R.,
[1986] 3 F.C. 51. Corporal Bissonnette cannot legitimately commence a civil
action in damages in this proceeding.
[9]
When
a member of the Canadian Forces believes that he or she has suffered an
injustice, the member can only commence an action through the grievance
process, such as was done here. Section 29.15 of the Act provides as follows:
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29.15
A decision of a final authority in the grievance process is final and binding
and, except for judicial review under the Federal Courts Act, is not
subject to appeal or to review by any court.
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29.15
Les décisions du chef d’état-major de la défense ou de son délégataire sont
définitives et exécutoires et, sous réserve du contrôle judiciaire prévu par
la Loi sur les Cours fédérales, ne sont pas susceptibles d’appel ou de
révision en justice.
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[10]
This
leads directly to section 18.1 of the Federal Courts Act, R.S.C. 1985,
c. F‑7. For the benefit of Corporal Bissonnette, who is representing
himself in this proceeding, I believe it is appropriate to reproduce
subsections 3 and 4 of this section of the Act:
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18.1(3) On an
application for judicial review, the Federal Court may
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18.1(3) Sur
présentation d’une demande de contrôle judiciaire, la Cour fédérale peut:
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(a)
order a federal board, commission or other tribunal to do any act or thing it
has unlawfully failed or refused to do or has unreasonably delayed in doing;
or
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a)
ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a
illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de
manière déraisonnable;
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(b)
declare invalid or unlawful, or quash, set aside or set aside and refer back
for determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
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b)
déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement
conformément aux instructions qu’elle estime appropriées, ou prohiber ou
encore restreindre toute décision, ordonnance, procédure ou tout autre acte
de l’office fédéral.
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(4) The Federal
Court may grant relief under subsection (3) if it is satisfied that the
federal board, commission or other tribunal
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(4) Les mesures
prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que
l'office fédéral, selon le cas:
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(a)
acted without jurisdiction, acted beyond its jurisdiction or refused to
exercise its jurisdiction;
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a) a agi
sans compétence, outrepassé celle-ci ou refusé de l’exercer;
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(b) failed to observe a principle of natural justice, procedural
fairness or other procedure that it was required by law to observe;
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b) n’a pas observé un principe de justice naturelle ou
d’équité procédurale ou toute autre procédure qu’il était légalement tenu de
respecter;
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(c)
erred in law in making a decision or an order, whether or not the error
appears on the face of the record;
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c) a rendu
une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci
soit manifeste ou non au vu du dossier;
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(d)
based its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
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d) a rendu
une décision ou une ordonnance fondée sur une conclusion de fait erronée,
tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont
il dispose;
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(e)
acted, or failed to act, by reason of fraud or perjured evidence; or
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e) a agi
ou omis d’agir en raison d’une fraude ou de faux témoignages;
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(f)
acted in any other way that was contrary to law.
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f) a agi
de toute autre façon contraire à la loi.
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[11]
If
Corporal Bissonnette had been a lawyer and if, in this case, there had been a
binding contract between the parties concerning their mutual relationship, he
would have sensibly pointed out that this case is none other than the sound
application of the case law, as conveyed in the reflections of an enlightened
man, Lord Denning, in Smith v. River Douglas Catchment Board, [1949] 2
K.B. 500, at page 514, [1949] 2 All ER 179, at page 188:
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… a
man who makes a deliberate promise which is intended to be binding, that is
to say, under seal or for good consideration, must keep his promise; and the
court will hold him to it…
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[(…)]
l’individu qui consciemment fait la promesse de respecter ce qui a été
convenu, qu’il s’agisse d’une obligation entérinée ou celle faisant état
d’une contrepartie valable, doit tenir parole; la Cour y veillera [(…)]
[our
translation]
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STANDARD OF REVIEW
[12]
The
Supreme Court of Canada has established that a pragmatic and functional
analysis should be adopted in each case to determine the appropriate standard
of review, as confirmed in Dr Q v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Law Society
of New Brunswick v. Ryan, [2003] 1 S.C.R. 247. Madam Justice
Layden-Stevenson undertook such an analysis in Armstrong v. Canada (Attorney
General), 2006 FC 505, [2006] F.C.J. No. 625 (QL) involving the National
Defence Act, where she wrote at paragraph 37:
Balancing the factors, I conclude that
for findings of fact, the applicable standard of review is that set out in the Federal
Courts Act, that is, they are reviewable only if they are erroneous, made
in a perverse or capricious manner or without regard to the evidence. This is
equivalent to patent unreasonableness. In all other respects, the decision of
the CDS (in this case the Grievance Authority) is subject to review on a
standard of reasonableness. See: McManus v. Canada(Attorney General)
2005 FC 1281 at paras. 14-20.
[13]
I
concur with my colleague’s reasons. I would add that, perhaps because of the
recognized expertise of the decision-maker in this case, the DGCFGA, its
interpretation of the applicable rules on this subject is reviewable on the
reasonableness simpliciter standard, not the correctness standard; see Voice
Construction Ltd. v. Construction & General Workers’ Union, Local 92,
[2004] 1 S.C.R. 609. However, even if the correctness standard were applied
here, the disputed decision would not require the intervention of this Court.
ANALYSIS
[14]
From
January 14, 2002, to March 31, 2002, Corporal Bissonnette served at LFQU TC in
Valcartier, Quebec. His employment was then extended to May 5, 2002. On March
22, 2002, the deputy commanding officer at LFQA TC in Valcartier wrote the
following letter setting out the
agreement between the parties:
[TRANSLATION]
March 22, 2002
To whom it may concern
CONFIRMATION OF EMPLOYMENT
1.
This
letter confirms that Mr. Bissonnette will be employed at the Land Force Quebec
Area Training Centre from March 30 02 to March 31 03. . . .
[15]
At
that time, as well as being a reservist, Corporal Bissonnette worked for the
National Capital Region section of the Canadian Corps of Commissionaires. He
had asked his superiors at LFQA TA to put the above letter in writing and to
send it to his civilian employer, Commissionaires Ottawa, so that he could
obtain a leave without pay. Unfortunately, this was not granted to him. From
then on, because Corporal Bissonnette continued to serve at the LFQA TA, his
civilian employment with the Canadian Corps of Commissionaires ceased.
[16]
In
principle, the agreement acknowledging an offer of service for the deployment
of reservist services that was to end on March 31, 2003, as confirmed by the
above letter dated March 22, 2002, depended on the funds that the
Canadian Forces expected to receive and on the expected deployment of a new
force that would be required to maintain the work force related to armament. In
addition, I must point out that the offer of service establishing the position
that Corporal Bissonnette was to fill until March 31, 2003, should have been
publicly posted at the outset. This was not done.
[17]
Lieutenant-Colonel
Holland recommended to the commanding officer of the brigade that Corporal
Bissonnette be compensated for a loss in salary from June 5, 2002, to March 30,
2003, for the periods of time where he was not assigned to a service, military
or civilian. However, Colonel D. Lafleur believed that the appropriate
financial compensation should be limited to seven days.
[18]
Then,
as a decision-maker in his position as the Director General of the Canadian
Forces Grievance Authority, Colonel Wauthier reiterated the conditions and
terms applicable to the administration of Class “B” reserve services. At the
same time, he pointed out in his reasons that Corporal Bissonnette had taken on
new positions within the Canadian Forces with the 28 Svc Bn subsequent to May
5, 2002. He came to the following conclusion:
[TRANSLATION]
In April 2002, you were offered a class
“B” reserve service for the period from May 6 to August 30, 2002. This offer
was not renewed six days before it ended mainly because of administrative anomalies
outside of your control. However, you obtained a class “B” reserve service from
June 13 to October 4, 2002, to take your QL 5 course. Therefore, in my opinion,
you suffered an injustice and possibly a loss of income for the period from May
6 to June 12, 2002.
[19]
It
is worth nothing that the services of a class “B” reservist, like those of
Corporal Bissonnette while serving at the LFQA TC, can be interrupted if a
situation occurs that is set out in Appendix B of the NDHQ Instruction −
ADM(PER) 2/93 Administration of Class A, Class B and Class C Reserve Service,
including the following:
TERMINATION OF CL B RES SVC
22. The service
of a member on Cl B Res Svc, excluding cases of injury, disease or illness:
b. may be ceased at
any time if 30 days written notice, or less if mutually agreed, is given
(assuming 30 days or more remain on the current period of service) to the
member by the employing unit. Notice of termination for unacceptable
performance or disciplinary related reasons must be approved by the original Cl
B Res Svc approving authority
[Emphasis added.]
[20]
Considering
that the service of a class “B” reservist may end at any time once the Canadian
Forces has issued a 30-day notice of termination, and that financial
compensation in excess of 30 days was recommended for Corporal Bissonnette, it
appears that Colonel Wauthier’s decision does not require the intervention of
this Court.
COSTS
[21]
At
the hearing, counsel for the respondents advised the Court that he had not been
requested to waive costs. He suggested that costs be awarded, that a lump sum
of $1,000 would be appropriate and well below the real costs if they were
assessed. Since the parties agree that on an assessment the costs would
certainly exceed $1,000, a person could recognize that the errors made by
certain decision-makers in determining issues that are before them, would have
the effect of encouraging applications for judicial review. I believe it is
preferable that each party bear their own costs.
ORDER
THE COURT ORDERS
that
this application for judicial review be dismissed without costs.
“Sean Harrington”
Certified
true translation
Mary
Jo Egan, LLB
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