Date: 20081106
Docket: T-1248-07
Citation: 2008
FC 1233
Ottawa, Ontario, November 6, 2008
PRESENT: The Honourable Mr. Justice Mosley
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]
This is an
appeal under Rule 51 of the Federal Courts Rules, SOR/98-106 (the
Rules) from the decision of Prothonotary Milczynski, dated May 27, 2008, which
dismissed the applicant’s action. The applicant’s Amended Statement of
Claim was struck on the grounds that the National Defence Act, R.S. 1985,
c. N-5 (the Act) and the Queen’s Regulations and Orders for the Canadian
Forces (the QR&O) establish an exclusive statutory scheme for the
resolution of service-related disputes between members of the Canadian Armed
Forces (CAF) and Her Majesty the Queen.
[2]
In his Amended
Statement of Claim, the applicant seeks a declaration that he was
wrongfully released from the CAF and an order restoring him to office. He also
claims damages of $4.3 million for breach of his right to security of the
person as guaranteed by section 7 of the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, enacted as Schedule B
to the Canada Act, 1982 (U.K.), 1982, c. 11 (the Charter), breach of equality
rights under section 15 of the Charter, loss of reputation and
defamation, intentional infliction of mental anguish, negligence and breach of
fiduciary duty.
[3]
These
claims are based on allegations arising from the applicant’s service with the
CAF from 1995 to 2005. The applicant acknowledges that he filed grievances with
respect to these allegations. He claims the respondent has either blocked his
access to the grievance procedure under the Act, or has unreasonably refused to
process and dispose of his grievances in an attempt to frustrate him from
getting redress. The applicant claims that because of these alleged wrongful
actions by the respondent, he has undergone medical treatment for stress and
anxiety.
[4]
The applicant
filed no evidence on this motion and relies on the allegations of fact in his Amended
Statement of Claim. He initially sought to appeal the Prothonotary's decision
to the Federal Court of Appeal and then sought and obtained an extension of
time to bring this motion under Rule 51. In granting the extension, Justice Harrington
applied the test set out in Canada (Attorney General) v.
Hennelly,
(1999), 244 N.R. 399, that is whether there was (a) a continuing intention to
appeal; (b) an arguable case; (c) a reasonable explanation for the delay; and
(d) whether the other party would suffer prejudice because of an extension: Moodie
v. Canada (Minister of National Defence), 2008 FC 968, [2008] F.C.J. No.
1202.
[5]
Justice
Harrington determined there had been a continuing intent to appeal, the
respondent would not be prejudiced by the grant of an extension and that there
was a reasonable explanation for the delay in that counsel had overlooked Rule
51.
[6]
With
respect to whether the applicant has an arguable case, at paragraph 9 of his
reasons for order Justice Harrington commented as follows:
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. [Emphasis added]
[7]
Justice
Harrington concluded, at paragraph 10 of his reasons, that "it may be that
at least some of the paragraphs of the amended statement of claim could have
survived the motion to strike". Accordingly, he granted the extension of
time to appeal.
[8]
In his
written argument on this motion the applicant submits that he seeks to further amend
his Statement of Claim. He has not specified any proposed amendment.
Alternatively, should the Court find that judicial review is a prerequisite to
proceeding with an action in this context, he states
that he wishes to convert the action into an application
for judicial review. But he has not identified any decision or decisions by the
CAF or the grievance board that could be subject to judicial review.
Issues
[9]
The
respondent has framed the primary issue on this appeal in jurisdictional terms
and submits that the jurisdiction of the Court has been ousted by the statutory
grievance process. Alternatively, the respondent submits, assuming the Court holds
residual jurisdiction, the issue is whether the Court should defer to the
comprehensive statutory scheme.
[10]
The
applicant has identified the issues as whether the Federal Court has
jurisdiction to hear this dispute and whether the applicant has to pursue
judicial review before launching an action for damages.
[11]
In my
view, the questions which arise on this motion are as follows:
a) What standard of review
governs an appeal from the decision of a prothonotary striking out a Statement
of Claim?
b) Is the applicant required to exhaust the statutory grievance
process applicable to workplace disputes in the Canadian Armed Forces before seeking
the intervention of this Court?
Standard of Review
[12]
As set out in Canada v. Aqua-Gem Investments Ltd., [1993]
2 F.C. 425 (C.A.), 149 N.R. 273 and restated in Merck & Co. v. Apotex
Inc., 2003 FCA 488, [2004] 2 F.C.R. 459, discretionary orders of prothonotaries
ought not to be disturbed on appeal to a judge unless:
a) the questions in the motion
are vital to the final issue of the case, or
b) the orders are clearly wrong,
in the sense that the exercise of discretion by the prothonotary was based upon
a wrong principle or upon a misapprehension of facts.
[13]
A decision
that can be interlocutory or final depending on the result should be considered
vital to the final resolution of the case. The parties agree that this is a proper
case to consider the matter de novo as the Prothonotary’s decision
disposed of the proceeding and as such was final.
Is the applicant required to exhaust the CAF
statutory grievance process before seeking the intervention of this Court?
[14]
The
applicant submits that his averments of fact in his Amended Statement of
Claim must be accepted by this Court as true or capable of being proven. He
asserts that he has tried to use the statutory scheme for grievances and the
respondent has obstructed and frustrated his attempts to access those procedures.
The respondent’s behaviour, the applicant alleges, constitutes a breach of his
rights under the Charter for which a remedy in damages is not available
under either the statutory grievance procedure or through a judicial review
application in this Court. Accordingly, he submits, it cannot be said there is
no chance of success in his bid to have the Court declare that the respondent’s
failure to accept or to dispose of his grievances is a stand-alone tort
sounding in damages.
[15]
The
respondent denies the applicant’s assertion of the facts and relies on the
affidavit of Gordon Prieur filed on the motion to dismiss before Prothonotary
Milczynski and resubmitted for this appeal. Mr. Prieur is Inquiries and
Complaints Officer at the Canadian Forces Grievance Authority within the
Department of National Defence. With supporting exhibits, Mr. Prieur’s
affidavit outlines the CAF grievance procedure and the status of six grievances
filed by the applicant.
[16]
Mr. Prieur
deposes that four of the grievances are being held in abeyance pending the
outcome of this action as required by section 7.16(1) of the QR&O. With
respect to the remaining two grievances, the affidavit indicates that the
applicant has not exhausted the avenues available to him to seek redress within
the CAF. Mr. Prieur was not cross-examined on his affidavit and the applicant
has not challenged the accuracy of its content.
[17]
The
respondent submits that the action struck out by the Prothonotary was an
attempt by the applicant to circumvent the CAF grievance procedure by claiming Charter
relief. That procedure, set out in sections 29 to 29.28 of the Act and
sections 7.01 to 7.18 of the QR&O, constitutes a comprehensive and
exhaustive code for determining grievances by CAF members.
[18]
The
applicant has two avenues of redress, the respondent submits: he can continue
with his grievances seeking reinstatement to the CAF and other remedies, or he
could apply for a pension under the Canadian Forces Members and Veterans
Re-establishment and Compensation Act, S.C. 2005, c. 21 to compensate him
for the injury he claims to have suffered. The action is, therefore, at best
premature and at worst, an abuse of the process of the Court. If unsatisfied
with the relief obtained through either of these avenues, the argument goes, he
can then bring an application for judicial review. That would not preclude the
applicant from ultimately bringing an action for damages should he fail to
obtain redress through these channels.
[19]
Rule
221(1)(a) provides that the Court may, at any time, order that a pleading, or
anything contained therein, be struck out, with or without leave to amend, on
the ground that it discloses no reasonable cause of action or defence, and may
order the action be dismissed. Under paragraph 221(1)(f), the pleading may also
be struck out on the ground that it is an abuse of process.
[20]
A motion
to strike a pleading on the ground that it discloses no reasonable cause of
action will be allowed only if, assuming the facts alleged in the statement of
claim to be true, the judge concludes that the outcome of the case is
"plain and obvious" or "beyond reasonable doubt": Hunt
v. Carey Canada Inc., [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321 at
page 980.
[21]
The
assumption that material facts in a statement of claim must be taken as true
does not mean that allegations based on assumptions and speculation must be
accepted as fact. They should be assumed to be true if capable of proof through
evidence that can be adduced at trial: Operation Dismantle Inc. v. The Queen,
[1985] 1 S.C.R. 441, 74 D.L.R. (4th) 321 at paragraph 27. That
applies equally to alleged breaches of Charter rights. The plaintiff
must show that he has at least some chance of success.
[22]
The case
for a finding that the applicant has been deprived of security of the person is
not readily apparent from the Amended Statement of Claim nor is it clear
how his equality rights under s. 15 of the Charter were breached by the
military authorities. The applicant has offered nothing more than the bald
allegations of his claims.
[23]
The practice
of the Court, as set out in Rule 221(2), is that no evidence shall be heard on
a motion for an order under paragraph 221(1)(a). However, the jurisprudence is
to the effect that an application to strike a pleading on the basis that the
cause of action is beyond the jurisdiction of the Court may be supported by
affidavit evidence: Erasmus v. Canada (No.2), [1992] 2 F.C. 681, [1992] 2 C.T.C. 21 (C.A.). Nor will the court refuse affidavit
evidence showing that an essential allegation of the claim is false: Cameron
v. Ciné St.-Henri Inc., [1984] 1 F.C. 421 (T.D.), 2 C.P.R. (3d) 491. As I understand
the applicant’s Amended Statement of Claim, an essential allegation is
that the respondent has refused to deal with his grievances.
[24]
There is
no restriction on the reception of affidavit evidence on a motion based on the
other grounds set out in Rule 221(1) including that the pleading is an abuse of
process.
[25]
I conclude
that Mr. Prieur's affidavit with respect to the CAF grievance procedure and the
status of the grievances filed by the applicant is admissible on this appeal as
an exception to the exclusion in Rule 221 (2) in support of the respondent’s
contention that an essential allegation of the applicant’s claim is false or
that the action is an abuse of process.
[26]
The
respondent's unchallenged evidence is that the applicant’s grievances are being
processed under the statutory scheme and that he is not being blocked from
access to that scheme.
[27]
This Court
has described the grievance procedure created under the National Defence Act
as the "broadest possible" and that it "accommodates any and
every wording, phrasing, expression of injustice, unfairness,
discrimination", and is "exhaustively comprehensive": Jones
v. Canada, (1994) 87 F.T.R. 190, 51 A.C.W.S. (3d) 1271 at paragraph 9.
[28]
It has
been consistently held that the CAF grievance procedure constitutes an adequate
alternative remedy that must be exhausted before an individual can turn to the Courts
for redress: Jones, above; Sandiford v. Canada, 2007 FC 225, 309 F.T.R. 233; Gallant v. Canada (1978),
91 D.L.R. (3d) 695, [1978] F.C.J. No. 1122 (F.C.T.D.); Pilon v. Canada
(1996), 119 F.T.R. 269 (T.D.), 23 C.C.E.L. (2d) 267; Villeneuve v. Canada
(1997), 130 F.T.R. 134 (T.D.), 71 A.C.W.S. (3d) 669; Haswell v. Canada (Attorney General) (1998), 56 O.T.C. 143 (Gen.
Div.), 77 A.C.W.S. (3d) 541 aff'd. (1998), 116 O.A.C. 395 (C.A.);.Anderson
v. Canada (Armed Forces) (C.A.) (1996),
[1997] 1 F.C. 273, 141 D.L.R. (4th) 54; and Chisholm v. Canada (Attorney General),
2003 FCT 387, 231
F.T.R. 155.
[29]
In Sandiford,
above, Madam Justice Layden-Stevenson described the rationale for this holding
at paragraph 29 of her reasons:
This approach is consistent with the
reasoning of the Supreme Court of Canada in Weber v. Ontario Hydro, [1995] 2
S.C.R. 929. There, the court determined that where the subject matter of a
dispute is one that is covered by a statutory scheme or collective agreement,
the court should, as a general rule, defer jurisdiction to the mechanisms set
out in the applicable scheme (paras. 50-58 and 67). More recently, in Vaughn v.
Canada, [2005] 1 S.C.R. 146, the Supreme Court emphasized that regard must be
had to the facts giving rise to the dispute rather than the legal
characterization of the wrong to determine whether there is an adequate
alternative remedy (para. 11). In all but the most unusual circumstances, the
court should decline jurisdiction and defer to statutory grievance schemes
(para. 2).
[30]
Justice
Layden-Stevenson found that the nature of Mr. Sandiford’s complaints in that
case fell squarely within the reach of the grievance procedure. Similarly, I am
of the view that the CAF grievance procedure is particularly well suited to
address the issues which Mr. Moodie has raised. As was found by Prothonotary
Milczynski, “…the alleged incidents arise directly out of the applicant’s
employment with the CAF. The harm to be remedied, the nature of the relief
requested and the facts and circumstances resulting in the alleged harm relate
to the regulation of his military life.” That factual context is not altered by
the applicant’s characterization of the incidents as breaches of his Charter
rights.
[31]
The
applicant submits that the recent decision of the Federal Court of Appeal in Bernath,
above, as well as that of Justice Barnes in Manuge v. Canada, 2008 FC
624, [2008] F.C.J. No. 787, support the proposition that despite the general
rule that an application for judicial review must be taken before a civil
action in damages, an action for damages for breach of Charter rights
could proceed without resorting to judicial review.
[32]
In my view, Manuge does not
support the applicant’s position. In that case, Justice Robert Barnes
ruled that in certain circumstances, an action by a member of the Canadian
Armed Forces could proceed as a class action notwithstanding that judicial
review had not been pursued. The claim dealt with a challenge to the lawfulness
of a government policy. Justice Barnes concluded, at paragraph 17 of his
reasons, that “any concerns regarding ensuring the finality around
administrative decisions carried less weight where the challenge is limited to
the lawfulness of a government policy and where the application of that policy
has on-going implications for the party affected”. In this matter, the claim
Mr. Moodie is pursuing is based on facts or incidents that have occurred in the
past and are relevant only to him.
[33]
In Bernath, the
applicant had been partially successful with his grievance but the Chief
of the Defence Staff declined to award monetary compensation as he considered
that he lacked the authority to do so. Rather than bring an application for
judicial review of that decision, the appellant began an action for damages
under section 24 of the Charter for infringement of his right to
security of the person.
[34]
The Statement
of Claim was struck and the action was dismissed by Prothonotary Mireille Tabib
on the ground that the Chief of Defence Staff had the necessary jurisdiction to
hear and decide the claim for damages; it could therefore have been raised during
the grievance process and as a result the action constituted an abuse of
process: Bernath v. Canada, 2005 FC 1232, 275 F.T.R. 232. The action was
reinstated on appeal of the Prothonotary’s decision by Justice Simon Noël in Bernath
v. Canada, 2007 FC 104, 321 F.T.R. 1.
[35]
Justice
Noël concluded after an extensive review of the facts and the law that the CAF
grievance process had not been designed to address issues of Charter
rights and the relief to be granted with respect thereto. For those purposes,
it was not a tribunal of competent jurisdiction within the meaning of section
24 of the Charter. Absent that jurisdiction, abuse of process did not
arise. Furthermore, the applicant did not need to proceed first by way of
judicial review before bringing his action.
[36]
Upon
appeal by the Crown, the Federal Court of Appeal held that Justice Noël had
made no fundamental error in applying the functional and structural approach
set out by the Supreme Court of Canada in R. v. 974649 Ontario Inc., 2001
SCC 81, [2001] 3 S.C.R. 575 for determining whether the tribunal is an
appropriate forum for ordering the remedy at issue. The Court noted, at
paragraph 8 of its reasons, that
in labour relations cases the courts have been adopting a non-interventionist
approach for some years with regard to administrative tribunals specialized in
this area: Vaughan v. Canada, [2005] 1 S.C.R. 146, par. 13.
[37]
In my
view, Bernath is distinguishable
from the case at bar as the
grievance procedure in that instance had been completed but was unable to
provide the remedy which the plaintiff was seeking. Here,
the applicant filed his action for damages prior to the final determination or
completion of the grievance process. There has been no finding of error in any
decision or action of the CAF respecting the applicant’s career and no
determination that a remedy is unavailable. This is not a case in which the
grievance procedure has been found to be inadequate to the task but rather one
in which the applicant seeks to circumvent that process.
[38]
The primary remedy that the applicant seeks is a declaration that
he has been wrongfully released from office and an order restoring him to
office in the CAF. That is clearly a form of redress that he could obtain
through the grievance process. Alternatively, he may be entitled to seek a
disability pension for injuries incurred during his service. It is simply
premature to assume that a remedy could not be provided through the
administrative processes when the applicant has failed to take advantage of
them. And these are the type of administrative decisions that are properly the
subject of judicial review applications.
[39]
The Court of Appeal in Bernath cited Prentice
v. Canada (Royal Canadian Mounted Police), 2005 FCA 395,
[2006] 3 F.C.R. 135 to illustrate the point that the plaintiff would find it
difficult to make out a case for Charter
infringement. In Prentice, the plaintiff had brought an action in the Federal
Court claiming damages against the Crown for violation of his right to security
of the person. The Crown sought to have the action struck on the grounds, among
others, that the remedy sought could be claimed by filing grievances under Part
III of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 or
Part II of the Canada Labour Code, R.S.C. 1985, c. L-2.
[40]
The Court of Appeal in holding that the action was a disguised grievance
or discrimination complaint, struck out the Statement of Claim and dismissed
the action. The Court had this to say at paragraph 76 of its reasons:
…a plaintiff who wishes to bring
action against the Crown in civil liability for damages must first exercise the
remedies he or she is offered by administrative law. Section 24 of the Charter
is not a life preserver for rescuing parties who fail to exercise the
remedies that they have under ‘ordinary’ laws. It is not the role of the
Federal Court to do things that the statutes assign to arbitrators and
ministers. It is quite simply not this Court’s function to decide, in an action
brought under the Charter, whether a grievance or a claim for disability
pension is justified, let alone to determine the amount of damages or of the
pension that arbitrators or ministers could have granted if the matter had been
put to them.
[41]
Similarly,
this action is a disguised grievance and discrimination complaint and the
applicant has failed to exhaust the remedies that are available to him under
the statutory grievance procedure. In my estimation, it is plain and obvious
and beyond reasonable doubt that this action is premature pending the completion
of those proceedings and has no chance of success.
[42]
In oral
argument, counsel for the applicant suggested that in the interests of judicial
comity I should defer to Justice Harrington’s assessment that “a fairly
arguable case” can be made in favour of the applicant’s claims.
[43]
The
principle of judicial comity is that a judge of a lower court should exercise
restraint when faced with a legal point previously decided by another member of
that same Court: Abbott Laboratories v. Canada (Minister of Health),
2006 FC 120, [2006] 4 F.C.R. 41. It is not the application of the rule of stare
decisis, but recognition that decisions of the Court should be consistent
so as to provide litigants with some predictability: Alfred v. Canada (Minister of Citizenship
and Immigration), 2005 FC
1134, 279 F.T.R. 7.
[44]
I note
that my brother judge’s assessment of the strength of the case was made in the
context of a motion for an extension of time where the legal threshold is low
and the exigencies require a fairly
immediate decision. Justice Harrington considered that there was a “fairly
arguable case” on the strength of Bernath. In my view, Bernath is
distinguishable for the reasons I have given above. Moreover, I have had a more
complete evidentiary record and have had an opportunity to review authorities
which point in a different direction. The conclusion I have reached is, in my
view, consistent with the weight of the jurisprudence.
[45]
In light
of these findings, it is not necessary for me to consider whether the “arguable
case” standard required for the grant of an extension of time is equivalent to
that required to defeat a motion to dismiss. But I would be loath in any event
to accept that a ruling on an extension motion would be dispositive of the
appeal for which additional time was granted.
[46]
Having
considered the applicant’s alternative submissions, I see no point in
attempting to further amend the Statement of Claim when the applicant has
failed to set out how that might be done. Nor do I consider it appropriate to
convert this action into an application for judicial review, assuming without
deciding that I would have the jurisdiction to do so. There are, as yet, no
decisions on the face of the record that could be made the subject of judicial
review.
[47]
It will
remain open to the applicant to pursue his grievances and to seek judicial
review of the resulting decisions and, if necessary, to then renew his action
for damages.
[48]
Accordingly,
I dismiss the motion and exercising my discretion de novo, strike the Amended
Statement of Claim and dismiss the action with costs to the respondent.
ORDER
IT IS THE ORDER OF THIS COURT that the motion appealing the
decision of Prothonotary Milczynski, dated May 27, 2008, is dismissed, the Amended
Statement of Claim herein is struck in its entirety and the action dismissed with
costs to the respondent throughout.
“Richard
G. Mosley”
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