Date: 20080826
Docket: T-1248-07
Citation: 2008
FC 968
Toronto, Ontario, August 26, 2008
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
ANTHONY
MOODIE
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA as represented by the
MINISTER OF NATIONAL DEFENCE
Defendant
REASONS FOR ORDER AND ORDER
[1]
Mr.
Moodie, a former Canadian Armed Forces serviceman, has taken an action against
Her Majesty, as represented by the Minister of National Defence, for damages
arising from his treatment as a member of the Forces. He claims under a number
of separate heads including: loss of reputation and defamation, infliction of
mental anguish, negligence and breach of fiduciary duty. However, he also
specifically claims $500,000.00 in damages arising out of an alleged breach of
his right to security of the person as guaranteed by section 7 of the Canadian
Charter of Rights and Freedoms and a further $1,000,000.00 for alleged
breach of equality rights pursuant to section 15 of the Charter.
[2]
Prothonotary
Milczynski granted the defendant’s motion for an order striking the action in
its entirety for want of jurisdiction. She reasoned that section 29 of the National
Defence Act and the Queens Regulations and Orders for the Canadian
Forces establish a complete and exclusive statutory scheme for the resolution
of service-related disputes between members of the Canadian Armed Forces and
Her Majesty. At the time of her decision, there were at least six grievances
that were pending final disposition. She specifically relied upon the decision
of Madam Justice Layden-Stevenson in Sandiford v. Canada,
2007 FC 225, 309 F.T.R. 233, which held that it was necessary to exhaust a
statutory grievance scheme before commencing an action.
[3]
Mr. Moodie
instructed counsel to appeal Prothonotary Milczynski’s order. Counsel attempted
to file a notice of appeal with the Federal Court of Appeal within 30 days of
her decision. That would have been the appropriate method of proceeding had the
decision to dismiss been issued by a judge (Federal Courts Act, section
27). However, there is a special rule pertaining to appeals of prothonotaries’
orders. Rule 51 of the Federal Courts Rules provides for an appeal
within 10 days by way of a motion to a judge of the Federal Court. Thus, the notice
of appeal was flawed both with respect to the Court to which it was addressed
and as to time constraints.
[4]
Mr. Moodie
has now moved for an order to extend the delays to file his appeal in this
Court. Her Majesty opposes.
[5]
The reason
the motion was not filed in time is clear. Counsel overlooked Rule 51.
[6]
Rule 8 of
the Federal Courts Rules provides that the Court may extend a
delay either before or after the end of the period sought to be extended. To a
large extent, the Court’s discretion is fact specific. Cases such as Canada (Attorney General) v. Hennelly
(1999), 244 N.R. 399 (Fed. CA) and Canada (Minister of Human Resources and
Development) v. Hogervorst, 2007 FCA 41, (2007) 359 N.R. 156,
ask whether there was: (a) a continuing intention to appeal; (b) an arguable
case; (c) a reasonable explanation for the delay; and (d) if the other party would
suffer a prejudice as a result of an extension.
[7]
The
ultimate test however is whether or not the extension would do justice between
the parties (Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (Fed. CA)).
[8]
I do not
think that either side is prejudiced whether an extension is granted or not.
Prothonotary Milczynski held:
The statement of claim is struck and the
action dismissed, without prejudice to the Plaintiff commencing a further
action for damages after the full and final disposition of his grievances,
including any other matter that is the proper subject matter of the grievance
procedure.
[9]
In light
of the recent decision of the Federal Court of Appeal in Canada v. Bernath,
2007 FCA 400, 290 D.L.R. (4th) 357, a fairly arguable case can
be made that, despite the general rule that an application for judicial review
cannot be commenced before the grievance procedure in the underlying statute is
exhausted and that one must at least commence an application for judicial
review against the final decision of a federal board or tribunal before suing
in damages (Canada (Minister of Citizenship and Immigration) v.
Hinton, 2008 FCA 215), there is no authority within the
aforementioned grievance procedure to grant a monetary remedy to a member of
the Canadian Forces who alleges that his Charter rights have been violated. It
is thus arguable that one need not wait for what cannot be done.
[10]
On that
basis, it may be that at least some of the paragraphs of the amended statement
of claim could have survived the motion to strike.
[11]
Given the
short delay and the reasons therefor, I am granting the extension.
ORDER
UPON MOTION in writing pursuant to Rules
8(1) and 369(1) of the Federal Courts Rules for an order extending time
to file a notice of motion to appeal from the order of Madam Prothonotary
Milczynski dated May 27, 2008 striking the statement of claim and dismissing
the action;
IT IS ORDERED that the motion is granted
without costs.
“Sean Harrington”
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