Date: 20051128
Docket: A-645-04
Citation: 2005 FCA 395
CORAM: RICHARD C.J.
DÉCARY J.A.
NADON J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
PATRICK PRENTICE
Respondent
Hearing held at Montréal on November 10, 2005.
Judgment delivered at Ottawa on November 28, 2005.
REASONS FOR JUDGMENT: DÉCARY J.A.
CONCURRED IN BY: RICHARD C.J.
NADON J.A.
Date: 20051128
Docket: A-645-04
Citation: 2005 FCA 395
CORAM: RICHARD C.J.
DÉCARY J.A.
NADON J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
PATRICK PRENTICE
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] May a member of the Royal Canadian Mounted Police who has taken part in peace-keeping missions abroad bring an action in damages against the Crown, his employer, based on an alleged violation of section 7 of the Canadian Charter of Rights and Freedoms (the Charter), notwithstanding the immunity granted to the Crown by section 9 of the Crown Liability and Proceedings Act (R.S.C. 1985, c. C-50)? If so, must the member exercise his administrative remedies before applying to the Federal Court?
[2] That is the essence of the issues that the parties have submitted to this Court in a motion to strike a pleading on the ground that it fails to disclose a reasonable cause of action.
THE FACTS
[3] Mr. Prentice (the respondent), a resident of Ontario, was, at the times relevant to this case, a member of the Royal Canadian Mounted Police (the RCMP). In that capacity, he took part in peace-keeping missions deployed under the aegis of the United Nations in Namibia in 1989 and in the former Yugoslavia in 1992.
[4] After he was released from the RCMP for medical reasons in January 2004, he brought an action in the Federal Court claiming damages in the amount of $3,250,000 from Her Majesty the Queen, as represented by the Royal Canadian Mounted Police.
[5] In his written submissions, filed at trial, which he reiterated in this Court, the respondent summarized his claim as follows:
[TRANSLATION]
1. In his amended statement of claim, filed on May 10, 2004, the plaintiff claims damages in the amount of $3,250,000 from the defendant as a valid remedy under section 24 of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS for violation of his right to security of the person, a right guaranteed to him by section 7 of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS, based on facts and conduct that are not part of his usual employment as a member;
2. The plaintiff took part in two peace-keeping missions, in Namibia, Africa, and in the former Yugoslavia, without receiving training regarding the political situation there and without adequate preparation for those missions, which went beyond his usual employment as a member, when the defendant could not have been unaware that such preparation was necessary both for him to be effective and for the protection of the plaintiff's life and security of the person, which he is guaranteed by section 7 of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS;
3. During those missions, the plaintiff experienced very stressful events for which his 11 years of work on investigations into economic crimes had in no way prepared him, and he had received no special training to prepare him for those missions;
4. The defendant accordingly violated the plaintiff's right to the physical and psychological security of his person, which is guaranteed to him by section 7 of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS, in a fundamentally unjust manner;
5. At paragraphs 52 to 62 of his amended statement of claim, the plaintiff alleges that the defendant harmed the plaintiff's health, that she refused to acknowledge his illness and provide him with appropriate treatment, that she engaged in harassment, that she violated his privacy and that she engaged in discrimination;
6. The defendant has not met the fiduciary obligation that rests on her under, inter alia, section 7 of the CANADIAN CHARGER OF RIGHTS AND FREEDOMS;
7. The plaintiff alleges that he has suffered substantial damage as a result of his inability to work and the suffering he has endured and will continue to endure until he dies as a result of the loss of enjoyment of life and he seeks a remedy for that damage under section 24 of the CANADIAN CHARTER OF RIGHTS AND FREEDOMS; . . . .
The Apparent Basis of the Plaintiff's Action
[6] The amended statement of claim is lengthy, repetitive, tortuous and confused.
[7] The identity of the defendant is sometimes ambiguous. Although the defendant is named as "Her Majesty the Queen in Right of Canada, represented herein by the Royal Canadian Mounted Police", paragraph 11 of the statement of claim criticizes the "defendant" who made orders in council authorizing the peace-keeping missions, and paragraph 24 criticizes the [TRANSLATION] "government of which the defendant is part". In his memorandum, the respondent criticizes the Canadian government, the Canadian Armed Forces and the RCMP, without distinction. When pressed to answer, counsel for the respondent finally acknowledged, at the hearing, that his criticism related solely to the actions of the RCMP.
[8] The alleged wrongdoing is variously characterized as [TRANSLATION] "negligence" (paragraphs 1(a) and (b)), [TRANSLATION] "breach of undertaking" (paragraphs 1(d), 63), [TRANSLATION] "harassment" (paragraph 1(e)), [TRANSLATION] "discrimination" (paragraphs 1(f), 83, 84), [TRANSLATION] "fault" (paragraph 1(I)), [TRANSLATION] "breach of legal obligations" (paragraph 1(c)), [TRANSLATION] "breach of fiduciary obligation" (paragraphs 1(j), 65, 66), [TRANSLATION] "violation of sections 7 and 15 of the Charter" (paragraphs 1(j), 2, 8, 52, 65, 67, 68, 78, 79), [TRANSLATION] "liability for all acts and omissions of her employees, servants or agents, including the officers, persons in authority and members of the medical team of the RCMP" (paragraph 9), [TRANSLATION] "interference with his health, refusal to acknowledge his illness, refusal and/or neglect to provide him with appropriate treatment, harassment, violation of privacy, discrimination . . . the defendant (having) thus fundamentally unjustly violated his right to the physical and psychological security of his person as guaranteed to him by section 7 of the Charter" (paragraph 52), [TRANSLATION] "exceptional recklessness in relation to respecting the plaintiff's rights and the security and integrity of his person as guaranteed to him by section 7 of the Charter . . . " (paragraph 78), and [TRANSLATION] "obvious, known, intentional and deliberate violation of his fundamental rights" (paragraph 79).
[9] Fortunately for the Court, which has to interpret a statement of claim "as generously as possible" at the motion to strike stage (Operation Dismantle Inc. v. Her Majesty the Queen, [1985] 1 S.C.R. 441, at page 451), counsel for the respondent acknowledged in his memorandum, at paragraph 34, that [TRANSLATION] "the respondent plaintiff has alleged no wrongdoing or illegal act against the plaintiff, and solely a violation of the Constitution", at paragraph 42, [TRANSLATION] "the action brought by the respondent plaintiff is based on section 7 of the Charter", at paragraph 55, [TRANSLATION] "the plaintiff is not seeking damages against the Crown in civil delictual liability, and rather is seeking a remedy for failure to comply with the Charter . . . , that is, under the Constitution, and has cited no delictual civil liability", at paragraph 81, [TRANSLATION] "the respondent has merely alleged failure to comply with section 7 of the Charter . . . and seeks a remedy under subsection 24(1) of the Charter . . . but has made no reference to any kind of fault", and, at paragraph 88, [TRANSLATION] "the plaintiff, in his amended statement of claim, does not base his action on the Crown Liability and Proceedings Act, and relies solely on the defendant's failure to comply with section 7 of the Charter . . . and, in the alternative, with her fiduciary obligation, without making any reference to liability, and so there is no issue of immunity under the Crown Liability and Proceedings Act in this case".
[10] In other words, if we leave aside the violation of section 15 of the Charter (to which counsel for the respondent did not return and which, in any event, had no chance of succeeding in the circumstances) and the violation of the fiduciary obligation (an obligation that this Court has not recognized: see Dumont v. Canada, [2004] 3 F.C.R. 338) (Dumont-Drolet), we find that what we have here is an action against the Crown that, essentially, says it is claiming damages for violation of section 7 of the Charter.
The Remedy Sought
[11] The only remedy sought by the respondent under section 24 of the Charter is an award of compensatory, moral and exemplary damages:
[TRANSLATION]
COMPENSATORY DAMAGES
• Loss of income for 12 years $750,000
• Loss of pension because of failure to be promoted $750,000
• Cost of future therapy $ 50,000
MORAL DAMAGES
• Loss of a brilliant career in the RCMP $500,000
• Destruction of the family unit $300,000
• Suffering, loss of enjoyment of life and loss of dignity $500,000
EXEMPLARY DAMAGES $400,000
TOTAL: $3,250,000
The Amended Motion to Strike
[12] In its amended motion to dismiss the action and strike a pleading, the Crown asks that the motion be dismissed [TRANSLATION] "on the ground that the Federal Court is not a court of competent jurisdiction for the purpose of awarding . . . the damages under subsection 24(1) of the Charter . . . that the plaintiff is seeking . . . for the alleged violation of his rights as guaranteed by sections 7 and 15 of the Charter". The motion also seeks to have the amended statement of claim struck out [TRANSLATION] "because it discloses no reasonable cause of action".
[13] With respect to the Court's lack of jurisdiction, the Crown argues that the remedy sought could be claimed only 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 and, possibly, filing a complaint under the Canadian Human Rights Act, R.S.C. 1985, c. H-6.
[14] With respect to the failure to disclose a reasonable cause of action, the Crown argues that the allegations all relate to the plaintiff's employment in the RCMP and are covered by the grievance procedure, that some allegations refer to a breach of a fiduciary obligation when no such obligation exists in this case, and that the damages claimed cannot be claimed because of the immunity granted to the Crown by the Crown Liability and Proceedings Act and the Government Employees Compensation Act, R.S.C. 1985, c. G-5. The Crown also argues that the legality of orders in council can only be challenged by way of an application for judicial review.
[15] It is not stated anywhere in that motion, or in the memorandum of facts and law accompanying it, that the action must be dismissed on the ground that the claim under section 7 of the Charter is certain to fail because the respondent did not identify any principle of fundamental justice in his statement of claim.
The Judgment of the Federal Court (2004 FC 1657)
[16] Before Mr. Justice Blanchard, the respondent acknowledged that he was not challenging the legality of the orders in council, and so the requirement that any challenge to them be brought by way of application for judicial review no longer applied.
[17] On the question of jurisdiction, the Judge found that the Court had jurisdiction to determine whether the Crown had violated the Charter by failing to prepare the respondent adequately for the missions to which he was assigned and by failing to provide him with appropriate care when he returned.
[18] On the question of a reasonable cause of action, the Judge stated that, in his opinion, cases involving actions for a remedy under section 24 of the Charter are treated in a particular way, and, relying on the decision of this Court in Dumont - Drolet, concluded that the principle of Crown immunity did not seem to apply where there was a violation of a Charter right.
The Parties' Arguments on Appeal
[19] On appeal, the Crown raised the question for the first time, and in fact as its main argument, of whether it was possible to find a violation of section 7 of the Charter from the facts alleged. The Crown argued, inter alia, that the respondent had not identified any principle of fundamental justice in his statement of claim and that, accordingly, his action was certain to fail. In the alternative, it argued Crown immunity and lack of jurisdiction on the part of the Federal court, along with another new argument, that the respondent was not entitled to the monetary compensation he was claiming absent any allegation of gross negligence or intentional fault.
[20] The respondent objected to the introduction of a new argument at the appeal stage. In any event, he argued at the hearing that the statement of claim discloses a violation of two principles that, in his submission, may be characterized as principles of fundamental justice: the prohibition on arbitrary action being taken by the government and the obligation of employers to ensure the safety of their employees. The respondent further argued that in Dumont-Drolet, this Court held that a cause of action based on a violation of a Charter right was not certain to fail. His final argument was that the question of which of the Federal Court and the grievance arbitrator has jurisdiction has not been definitively settled.
The Task of this Court
[21] If the Court determines that it is plain and obvious that this action fails to meet the requirements for the application of section 7 of the Charter, and is consequently certain to fail, the Court will not have to go any further. If the action is not struck out at that point, the Court will then have to decide whether the Crown immunity created by sections 8 and 9 of the Crown Liability and Proceedings Act and section 12 of the Government Employees Compensation Act, R.S.C. 1985, c. G-5 is a plain and obvious bar to an action based on the Charter. If the Court concludes that the action is not certain to fail on that point, it will then have to decide whether the action should not, plainly and obviously, be brought before the administrative authorities established in various federal statutes (such as grievance arbitrators or the Minister) rather than in the Federal Court.
PREMISES
[22] My analysis will be based on the following premises.
Treatment of a Motion to Strike
[23] A motion to strike a pleading under paragraph 221(1)(a) of the Federal Court Rules 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" (see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Wilson J. at page 980). It is clear from what Madam Justice Wilson said that the power to strike out pleadings must be exercised with considerable caution and reluctance and that neither the length or complexity of the issues nor the novelty of the cause of action should prevent a plaintiff from proceeding with his or her action.
[24] That does not mean, however, that a party who advances an unprecedented cause of action will have an easy time of it at the motion to strike stage. The courts are certainly prepared to give such a party his or her day in court, but the cause of action, novel as it may be, must still have some chance of being recognized at the end of the road. A cause of action is not "reasonable" simply because it has not yet been explored. The courts must not naively assume that something novel is or may be part of the normal course of evolution in the law. For instance, in order to determine whether a case arises out of an employer-employee relationships, the facts giving rise to the dispute must be considered, and not the "characterization of the wrong" alleged; otherwise, "innovative pleaders" could "evade the legislative prohibition on parallel court actions by raising new and imaginative causes of action" (Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at paragraph 49; Vaughan v. Canada, [2005] 1 S.C.R. 146, at paragraph 11 and Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, at paragraph 93). In Vaughan, according to Mr. Justice Binnie, the appellant had undoubtedly felt obliged "to frame his action, with a degree of artificiality, in the tort of negligence" (paragraph 11) to circumnavigate the Crown Liability and Proceedings Act, which did not stop the Court from striking the action brought on a preliminary motion.
[25] In the context of a remedy sought under the Charter, it is worthwhile to refer to Chief Justice Dickson's remarks in Operation Dismantle, at page 450:
I agree . . . that, regardless of the basis upon which the appellants advance their claim for declaratory relief - whether it be s. 24(1) of the Charter, s. 52 of the Constitution Act, 1982, or the common law - they must at least be able to establish a threat of violation, if not an actual violation, of their rights under the Charter.
In short then, for the appellants to succeed on this appeal, they must show that they have some chance of proving that the action of the Canadian government has caused a violation or a threat of violation of their rights under the Charter.
[26] It also goes without saying that it is the facts that are assumed to be true, not the facts as they may be interpreted by the plaintiff in his statement of claim or the legal assertions that he may make in it.
[27] Moreover, where the failure to disclose a reasonable cause of action arises from the fact that the Court does not have jurisdiction over the case, if the lack of jurisdiction is indeed plain and obvious, the action must certainly be struck out.
[28] As a final point, I note that although the Crown started out by also basing its motion to strike on paragraph (1)(f) ("abuse of process"), it did not really make any argument on that point, and like Mr. Justice Blanchard, I will disregard it.
Standard for Review of a Discretionary Decision
[29] Mr. Justice Blanchard's decision to allow the proceedings to continue is discretionary, and this Court will intervene only if the decision was based on an error of law or if the discretion was exercised erroneously, that is, if the judge did not place sufficient or any weight on relevant considerations, or if he had regard to irrelevant factors or failed to have regard to relevant factors (see Elders Grain Co. Ltd. v. Ralph Misener (Ship), [2005] FCA 139.
[30] Accordingly, where, as well, the judge finds that a cause of action is at the very least doubtful, and therefore worthy of continuing to trial, when in reality it is plainly and obviously without merit, this Court will have to intervene. If, for example, there is no possibility that the violation of section 7 or the existence of an appropriate and just remedy could be established at trial, or if the Court is clearly without jurisdiction in the circumstances, the statement of claim will have to be struck out.
The Orders in Council
[31] There have been no applications in the Federal Court for judicial review of the orders in council made by the Government of Canada under the powers granted by paragraph 31(1)(b) of the National Defence Act, R.S.C. 1985, c. N-5, which allowed peace-keeping missions to be deployed in Namibia and in the former Yugoslavia in 1989 and 1992. In theory, such applications would have been possible (see Operation Dismantle). Counsel for the respondent acknowledged at the hearing that he recognized that the orders in council were lawful, but challenged the way they had been applied; that statement seems to contradict the allegation made in paragraph 84 of the statement of claim, that [TRANSLATION] " . . . these discriminatory acts arose out of the orders in council made, which require your plaintiff to go on missions that were not based on any lawful order or on any of the principles of justice that exist in Canada".
[32] This Court recently held, in Grenier v. The Queen, 2005 FCA 348, that a plaintiff could not use an action in damages to mount a collateral attack against the decision of a federal tribunal where the decision had not already been declared to be unlawful in a timely application for judicial review. At paragraph 61, Mr. Justice Létourneau pointed out that the fact that a decision of a federal tribunal is lawful forecloses a finding of negligence in respect of the decision, and that moreover, even a finding that such a decision was unlawful does not necessarily entail a finding of fault or negligence and would not necessarily result in a finding of liability.
[33] I am of the opinion that the same reasoning leads to the conclusion that a plaintiff cannot rely on the Charter to claim a remedy under the Charter based on the alleged illegality of a decision of a federal tribunal that has not already been declared invalid or unlawful in an application for judicial review.
Crown Immunity
[34] Counsel for the respondent acknowledged that were it not for the allegation of a violation of Charter rights, the respondent, as a government employee, would have no right of action in liability against the Crown, his employer, by the combined operation of the Crown Liability and Proceedings Act, the Government Employees Compensation Act (sections 3, 4 and 12), the Royal Canadian Mounted Police Act and the Regulations under that Act (Royal Canadian Mounted Police Regulations, 1988, SOR 88-36) and the Royal Canadian Mounted Police Superannuation Act, R.S.C. c. R-11, section 34) (see Savarnis v. Canada, [2002] 1 S.C.R. 921). Because Mr. Justice Blanchard held, at paragraph 14 of his reasons, that "the pension or compensation paid has the same factual basis as the actions", that would mean, following the reasoning of the Supreme Court of Canada in Sarvanis v. Canada , [2002] 1 S.C.R. 921, that absent the allegation of a Charter violation, Crown immunity would apply. (See also Lawrence v. Canada (Royal Canadian Mounted Police), [1997] F.C.J. No. 75 (Q.L.); R. v. Canada (Solicitor General), [1999] N.S.J. No. 263 (Q.L.), 2002 N.S.C.A. 30 and [2001] S.C.C.A. No. 173 (Q.L.).
[35] The purpose of immunity from actions against the employer that is associated with workers' compensation schemes has been explained repeatedly (see, inter alia, Pasiechnyk v. Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890; Béliveau St-Jacques v. Fédération des employées et employés de services publics Inc., [1996] 2 S.C.R. 345). This immunity is the result of what is called an historic compromise, under which workers lose their cause of action against their employer in exchange for compensation that is not dependent on either the employer's liability or its ability to pay. That immunity is regarded as essential to the very existence of workers' compensation schemes. A possible consequence of the immunity is that a worker will receive less compensation than he or she would perhaps have received by applying to the courts, and one of the purposes of that immunity is to prevent an employee from going to court to attempt to obtain the difference between the value of the harm actually suffered and the value of the compensation paid to the worker under the scheme.
[36] The constitutional validity of schemes of that nature, in relation to sections 7 and 15 of the Charter, has been recognized many times: see Reference re Workers' Compensation Act, 1983 (Nfld.), [1989] 1 S.C.R. 922; Whitbread v. Walley, [1990] 3 S.C.R. 1273; Budge v. Alberta (Workers' Compensation Board), (1991) 77 D.L.R. (4th) 361 (Alta. C.A.).
[37] It does not seem that the Supreme Court of Canada has, to date, had to decide whether this Crown immunity applied against remedies sought under the Charter. In Béliveau St-Jacques, the Court held that the immunity applied against section 49 of the Quebec Charter of Human Rights and Freedoms, a quasi-constitutional enactment.
Violation of the Right to Security of the Person
[38] Section 7 of the Charter provides:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[39] As Mr. Justice Bastarache said in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, at paragraphs 47 et seq., the plaintiff must first prove that the right asserted is a right under section 7, i.e. that there has been a deprivation of his or her right to life, liberty or security, and then prove that the deprivation is contrary to the principles of fundamental justice.
[40] Security of the person - which is what concerns us here - includes physical and psychological security. In the case of psychological security, as Mr. Justice Bastarache said at paragraph 57, security of the person is restricted to "serious state-imposed psychological stress".
[41] With respect to the principles of fundamental justice, Mr. Justice Bastarache said, at paragraphs 45 and 46:
45 Although there have been some decisions of this Court which may have supported the position that s. 7 of the Charter is restricted to the sphere of criminal law, there is no longer any doubt that s. 7 of the Charter is not confined to the penal context. This was most recently affirmed by this Court in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, where Lamer C.J. stated that the protection of security of the person extends beyond the criminal law (at para. 58). He later added (at para. 65):
. . . s. 7 is not limited solely to purely criminal or penal matters. There are other ways in which the government, in the course of the administration of justice, can deprive a person of their s. 7 rights to liberty and security of the person, i.e., civil committal to a mental institution: . . .
46 . . . Section 7 can extend beyond the sphere of criminal law, at least where there is "state action which directly engages the justice system and its administration" (G. (J.), at para. 66). If a case arises in the human rights context which, on its facts, meets the usual s. 7 threshold requirements, there is no specific bar against such a claim and s. 7 may be engaged. . . .
[42] The concept of "principle of fundamental justice" was defined by Gonthier and Binnie JJ. in R. v. Malmo-Levine, [2003] 3 S.C.R. 571, at paragraphs 112 and 113, as follows:
112 In Re B.C. Motor Vehicle Act, supra, Lamer J. (as he then was) explained that the principles of fundamental justice lie in "the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system" (p. 503). This Court provided further guidance as to what constitutes a principle of fundamental justice for the purposes of s. 7, in Rodriguez, supra, per Sopinka J. (at pp. 590-91 and 607):
A mere common law rule does not suffice to constitute a principle of fundamental justice, rather, as the term implies, principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice are required. Principles of fundamental justice must not, however, be so broad as to be no more than vague generalizations about what our society considers to be ethical or moral. They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. They must also, in my view, be legal principles.
. . .
While the principles of fundamental justice are concerned with more than process, reference must be made to principles which are "fundamental" in the sense that they would have general acceptance among reasonable people. [Emphasis added.]
113 The requirement of "general acceptance among reasonable people" enhances the legitimacy of judicial review of state action, and ensures that the values against which state action is measured are not just fundamental "in the eye of the beholder only": Rodriguez, at pp. 607 and 590 (emphasis in original). In short, for a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. (Emphasis is mine)
In that case, the Court refused to consider as a principle of fundamental justice the "harm principle", according to which the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.
[43] The Supreme Court of Canada again considered this issue a few months later, in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, in which it held that the legal principle of the "best interests of the child" was not a principle of fundamental justice:
Jurisprudence on s. 7 has established that a "principle of fundamental justice" must fulfill three criteria: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74">2003 SCC 74, at para. 113. First, it must be a legal principle. This serves two purposes. First, it "provides meaningful content for the s. 7 guarantee"; second, it avoids the "adjudication of policy matters": Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. Second, there must be sufficient consensus that the alleged principle is "vital or fundamental to our societal notion of justice": Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 590. The principles of fundamental justice are the shared assumptions upon which our system of justice is grounded. They find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens. Society views them as essential to the administration of justice. Third, the alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. Examples of principles of fundamental justice that meet all three requirements include the need for a guilty mind and for reasonably clear laws. (para. 8)
[44] And then, in Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, the Court refused, as follows (at paragraph 66), to consider refusal to fund treatment as a principle of fundamental justice:
66 Section 7 was raised only fleetingly in written and oral submissions before this Court. The petitioners do not clearly identify the principle of fundamental justice which they allege to have been breached by the denial of funding for Lovaas or other ABA/IBI-based therapy. Nor do they argue that the denial of funding or the statutory scheme violate the prohibition against arbitrariness or requirements for procedural safeguards. To accede to the petitioners' s. 7 claim would take us beyond the parameters discussed by this Court in R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74">2003 SCC 74, at para. 113, and Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4">2004 SCC 4, at para. 8. The record before us does not support taking this step.
[45] In Chaoulli v. Québec (Attorney General), 2005 S.C.C. 35, Chief Justice McLachlin and Major and Bastarache JJ. stated that in their opinion it is a principle of fundamental justice that the state is not permitted to make arbitrary laws (at paragraph 129). They concluded that in that case, the prohibition on taking out private health insurance was arbitrary. Binnie, LeBel and Fish JJ., on the other hand, concluded that while section 7 might apply outside the context of criminal law and the administration of justice (see Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519; Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, paragraphs 78-80; Reference re . . . 193 and 195.1(1)(c) of the Criminal Code (Man), [1990] 1 S.C.R. 1123, pages 1171-1174; Blencoe, supra), it is up to the plaintiff to identify the principle of fundamental justice on which he or she intends to rely, that requirement being "the real control over the scope and operation of section 7" (paragraph 199). In that case, they concluded that the objective of access to a reasonable standard of health care within a reasonable time is not a legal principle, there is no societal consensus about what it means or how to achieve it, and it cannot be identified with precision (paragraph 209).
Administrative Remedies
[46] In this case, Mr. Prentice could have exercised his rights under a number of statutory schemes:
(a) the grievance procedures set out in Part III of the Royal Canadian Mounted Police Act, given that the plaintiff is asserting causes of action that arose in the course of the performance of his duties in the RCMP;
(b) the process set out in Part II of the Canada Labour Code, which requires that the RCMP protect its members' health and safety or be liable to significant penalties (see sections 124 et seq., 148);
(c) the complaint procedure set out in section 40 of the Canadian Human Rights Act, to assert discrimination on the basis of health;
(d) the procedure set out in paragraph 19(a), and sections 20, 22 and 28 of the Royal Canadian Mounted Police Regulations relating to discharge for medical reasons;
(e) compensation for temporary injury or illness under section 39 of the Royal Canadian Mounted Police Superannuation Act and section 4 of the Government Employees Compensation Act;
(f) compensation for permanent injury or illness under section 32 of the Royal Canadian Mounted Police Superannuation Act.
There is nothing in the record to suggest that Mr. Prentice took any action under any of those provisions. According to paragraph 49 of the amended statement of claim, he used the grievance procedure, in 1998, [TRANSLATION] "for an injustice committed against him", but was told not to use that procedure again, and followed that advice.
Workers' Compensation and the Jurisdiction of the Arbitrator
[47] It seems clear to me, as it did to Mr. Justice Binnie in Vaughan, that notwithstanding the way his statement of claim is framed, the dispute in this case arises out of the employment relationship between the respondent and the RCMP.
[48] A claim can be made under a worker's compensation scheme for various kinds of compensation, including compensation for harassment (see Béliveau St-Jacques) or psychological trauma (see Rees v. Canada (Royal Canadian Mounted Police), 2005 N.L.C.A. 15 (Newfoundland and Labrador Court of Appeal), and compensation for aggravation of injuries after an injury in the course of employment (see Kovach v. British Columbia (Workers' Compensation Board), [2000] 1 S.C.R. 55 and Lindsay v. Saskatchewan (Workers' Compensation Board), [2000] 1 S.C.R. 59.
[49] In labour relations cases, the exclusive jurisdiction of the arbitrator model applies, where the dispute between the parties, in its essential character, arises from the interpretation, application, administration or violation of a collective agreement (Weber, [1995] 2 S.C.R. 929, at paragraphs 50 to 58), or, in its essential character, arises from a statutory scheme (Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, at paragraph 26), or, in its essential character, arises from a scheme established by the Public Service Staff Relations Act (Vaughan, at paragraph 15; Vaid, at paragraph 93).
[50] The courts, however, retain jurisdiction if the scheme established by the statute does not provide for the remedy sought (St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, page 724; Weber, paragraph 57; Vaughan, paragraph 30).
[51] It has now been recognized that an arbitrator has jurisdiction to apply the Charter on the same basis as the other laws of the country.
In applying the law of the land to the disputes before them, be it the common law, statute law or the Charter, arbitrators may grant such remedies as the Legislature or Parliament has empowered them to grant in the circumstances. For example, a labour arbitrator can consider the Charter, find laws inoperative for conflict with it, and go on to grant remedies in the exercise of his powers under the Labour Code: . . . . If an arbitrator can find a law violative of the Charter, it would seem he or she can determine whether conduct in the administration of the collective agreement violates the Charter and likewise grant remedies.
(Weber, at para. 61; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, at p. 597).
[52] As Mr. Justice Gonthier said, speaking for the Court in Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, at paragraph 3:
Administrative tribunals which have jurisdiction-whether explicit or implied- to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that provision. This presumption may only be rebutted by showing that the legislature clearly intended to exclude Charter issues from the tribunal's authority over questions of law.
(See also Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585).
[53] An arbitrator is also a tribunal of competent jurisdiction, if his or her enabling statute authorizes it, to award damages for a Charter violation, "assuming that damages are an appropriate remedy for a Charter breach" (Weber, at paragraphs 62 and 75; see also 2005 SCC 64">Boucher v. Stelco Inc., 2005 SCC 64, at paragraph 29).
ANALYSIS
Section 7 of the Charter
[54] The appellant's position in this appeal puzzles me and puts the Court and the respondent in an uncomfortable situation. If it is obvious that the action based on section 7 of the Charter has no chance of success, in itself, because no principle of fundamental justice has been identified, how is it that the Crown did not make this one of the grounds for its amended motion to strike? By raising this argument for the first time in the appeal, and by further making it its principal argument, is the Crown not trying to re-amend its motion to strike, to short-circuit the system, and to ask this Court to decide a question that is crucial to the respondent without the benefit of reasons having been given by a judge of the Federal Court?
[55] Paragraph 359(c) of the rules requires that a notice of motion "set out" "the grounds intended to be argued", and paragraph 364(2)(e) requires that a motion record contain "written representations". There is a reason for those rules, and it is to ensure that the moving party identifies the grounds that it is arguing sufficiently precisely that the opposing party knows what it will have to respond to and the Court knows what to expect at the hearing (if, of course, there is a hearing) and can prepare accordingly.
[56] Striking out an action on a preliminary motion is an extreme measure, and the Court is entitled to expect that the moving party will not act lightly and will lay out all its ammunition at the outset. The moving party should not be able to raise an argument on appeal that it apparently could not have raised, because it had not been asserted in pleadings, at the hearing in the first instance, particularly because it is difficult to argue that a judge has exercised his or her discretion improperly when the question was not even submitted to him or her. I am not saying that the Court of appeal will systematically refuse to hear a new argument by a moving party; I believe that the Court will always have discretion to do that, but it must be done without infringing on the opposing party's rights. I am saying that a moving party who plays this game is playing with fire.
[57] In this case, having regard to the conclusion I have reached, which is essentially based on the decision in Dumont-Drolet, which both parties cited to their benefit, I do not have to decide whether or not I would have agreed to dispose of the new argument raised by the appellant.
The decision in Dumont-Drolet
[58] At paragraph 42 of his memorandum, counsel for the Crown stated that [TRANSLATION] "the effect of this appeal is to ask this Court to clarify and delineate the effect of its reasoning [in relation to the violation of section 7 of the Charter] in Dumont and Drolet", and explained, at paragraph 43, that [TRANSLATION] "the appellant will argue that the effect given by the Motions Judge to the reasoning of this Court in Dumont-Drolet is not the effect that it has or, more importantly, that it can have".
[59] Counsel for the respondent argued, at paragraphs 35 to 42 of his memorandum, that the decision of this Court in Dumont-Drolet established, as res judicata, that a claim under section 7 of the Charter could not be precluded by section 9 of the Crown Liability and Proceedings Act.
[60] I am of the view that this appeal can be disposed of on the basis of the decision in Dumont-Drolet, well understood, although perhaps not necessarily disposed of in the way that either counsel had hoped.
[61] In Dumont-Drolet, the plaintiffs, who were both members of the Canadian Forces, had sought and obtained a pension under subsection 21(2) of the Pension Act, R.S.C. 1985, c. P-6, for disability resulting from their participation in peace-keeping missions abroad, and they were still able to submit new applications to the Minister.
[62] Accordingly, notwithstanding the fact that they were already receiving disability pensions and were in a position to claim payment of another pension, Mr. Dumont and Mr. Drolet brought an action in damages against the Crown for $2,844,000 and $3,017,721 respectively. The breaches alleged in their statements of claim were substantially the same as those alleged in this case, before Mr. Prentice amended his statement of claim, in reaction to the decision in Dumont-Drolet, to specify the nature of the alleged violation of section 7 of the Charter. (Counsel for Mr. Dumont and Mr. Drolet is the same person who represents Mr. Prentice.)
[63] The Crown brought a motion to strike on the ground that the actions sought to claim damages for disability caused by an injury or disease or an aggravation thereof that was attributable to or was incurred during such military service (s. 21 of the Pension Act), that the disability entitled them to a pension and that under section 9 of the Crown Liability and Proceedings Act, no action could be brought against the Crown.
[64] The Crown asked, in the alternative, under subsection 11(2) of the Pension Act, that if the Court concluded that the damages claimed were not covered by section 9 of the Crown Liability and Proceedings Act, it stay the actions [TRANSLATION] "so that the plaintiff can exhaust the remedies available to him in order that the bodies established by the Pension Act and the Veterans Review and Appeal Board Act, 1995, c. 18 could determine the plaintiff's eligibility for a pension . . . ".
[65] The Court concluded that because the factual basis for the plaintiffs' statements of claim was the same as for the pension they were receiving or might receive, the actions had to be struck out because they were prohibited under section 9 of the Crown Liability and Proceedings Act (see paragraph 73 of the Reasons). The court relied on Savarnis.
[66] The Court also concluded in that paragraph that even if the appellants relied on the fiduciary relationship of the Crown, their actions were essentially tort actions, and as such could not be brought.
[67] The Court then held as follows, at paragraphs 78, 79 and 80, in relation to the violation of section 7 of the Charter:
78 The appellants did not explain in any way how section 7 of the Charter has been infringed. However, in the event that the respondent has breached the appellants' rights that are guaranteed by this section, it is far from certain that section 9 of the Act can be relied upon to exclude a fair and appropriate remedy in keeping with the circumstances. It is up to the judge responsible for applying subsection 24(1) of the Charter, to assess whether the pension that might be awarded is appropriate and fair in regard to the circumstances, or if it would be appropriate to add further compensation.
79 In view of the uncertainty, it is in the interest of justice to stay the appellants' actions but only in so far as they are based on section 7 of the Charter and until the conditions provided in subsection 111(2) of the Pension Act have been met.
80 The appellants will have 60 days from the date of this judgment to amend their statements of claim accordingly.
[68] What I understand from this is that absent specific allegations from which the Court could determine that there had been a violation of section 7 of the Charter, the Court allowed the plaintiffs to amend their statements of claim and left it to the Trial Judge to determine whether the conditions for section 7 of the Charter to apply had been met. The Court also stated its opinion that it was not plain and obvious, at the motion to strike stage, that the Crown's immunity was a bar to the exercise of a remedy based on section 7 of the Charter, thus again leaving the ultimate decision to the Trial Judge. However, the Court also held that if the Trial Judge concluded that there had been a violation of section 7 of the Charter and that the Crown could not set up its immunity against that violation, the only appropriate and just remedy that the Trial Judge could grand in the circumstances, under section 24 of the Charter, would be the difference between the value of the harm actually suffered and the value of the compensation that the plaintiffs had received or would receive once the administrative process had concluded.
An Impossible Remedy
[69] The remedy sought here, compensatory, moral and exemplary damages, is typical of liability actions in common law and confirms the real nature of the action brought by the respondent. When stripped of the artifices that litter the statement of claim once it was amended in response to the decision in Dumont-Drolet - undoubtedly to avoid the Crown immunity against civil liability actions recognized by the Court - the applicant's action is in reality an action by an employee against his employer seeking damages for harm allegedly suffered in the course of his employment (see Vaughan, at paragraph 11).
[70] Given that this action is a disguised action in civil liability against the Crown, it is prohibited by sections 8 and 9 of the Crown Liability and Proceedings Act.
[71] Given that this action is a disguised claim based on an accident in the course of employment, it is prohibited by section 12 of the Government Employees Compensation Act, which provides that an employee is entitled only to compensation under that Act.
[72] Given that this action is a disguised grievance or discrimination complaint, it cannot be brought in the Federal Court. The specialized tribunals established by Parliament to determine such cases are where the respondent should have taken his case or should take it. The presentation of grievances is provided for by Part III of the Royal Canadian Mounted Police Act (ss. 31 et seq.) and Part II of the Canada Labour Code (ss. 124 et seq.), which requires that the employer ensure that its employees' health and safety at work is protected, and section 148 of which provides for the employer is liable to imprisonment and a fine of not more than $1,000,000. Filing of discrimination complaints is provided for by the Canadian Human Rights Act (however, see Vaid).
[73] Given that this action is a disguised claim for a disability pension, it does not come within the framework of an action in damages and is instead governed by Part II of the Royal Canadian Mounted Police Superannuation Act.
[74] In short, because the compensation sought can already be recovered, at least in part, under various federal statutes, the respondent may claim, in the action in damages that he says is based on section 7 of the Charter, only the difference, which might constitute a remedy that is "appropriate and just in the circumstances" within the meaning of section 24 of the Charter.
[75] Unlike what happened in Dumont and Drolet, where that excess was capable of being evaluated in the event that the claim under section 7 of the Charter, which the Court stayed, had merit and was capable of defeating the Crown's immunity, it would simply not be possible, in this case, for the Trial Judge to assess such additional compensation, because such compensation presupposes a base compensation. Where no base compensation has been claimed, let alone evaluated, I cannot see how the Court could, at trial, determine the "further compensation" » (Dumont-Drolet, paragraph 78) to which the respondent would be entitled.
[76] My conclusion is consistent with what the Court has recently decided, in Grenier: 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 the "ordinary" laws. It is not the role of the Federal Court to do the 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 a 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.
[77] In the circumstances, the respondent's action is undeniably certain to fail, even if there was a violation of section 7 of the Charter and even if his action under the Charter was not precluded by Crown immunity, issues on which I need therefore not state an opinion.
[78] I would therefore allow the appeal with costs at both levels, set aside the judgment of the Federal Court, allow the motion to strike and strike out Mr. Prentice's amended statement of claim in its entirety.
"Robert Décary"
J.A.
I concur
"J. Richard" C.J.
I concur
"M. Nadon" J.A.
Certified true translation
K.A. Harvey
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-645-04
STYLE OF CAUSE: Her Majesty the Queen v. Patrick Prentice
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 10, 2005
REASONS FOR JUDGMENT: DÉCARY J.A.
CONCURRED IN BY: RICHARD C.J.
NADON J.A.
DATE OF REASONS: November 28, 2005
APPEARANCES
Raymond Piché
Nadia Hudon FOR THE APPELLANT
Jacques Ferron
Gilles Savard FOR THE RESPONDENT
SOLICITORS OF RECORD
Jacques Ferron
Québec, Quebec FOR THE APPELLANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Québec, Quebec FOR THE RESPONDENT
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