Docket: A-263-16
Citation:
2017 FCA 191
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CORAM:
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GAUTHIER J.A.
NEAR J.A.
GLEASON J.A.
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BETWEEN:
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LOREN MURRAY PEARSON
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Appellant
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and
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(CANADA)
ATTORNEY GENERAL
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Respondent
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REASONS
FOR JUDGMENT
GAUTHIER J.A.
[1]
Loren Murray Pearson appeals a decision of
Fothergill J. of the Federal Court dismissing his application for judicial
review of what is alleged to be a decision of the Department of National
Defence (DND) and Canadian Forces’ Legal Advisor (the Legal Advisor) dated July
9, 2015. In its reasons (2016 FC 679 at paragraph 3), the Federal Court held
that the letter from the Legal Advisor dated July 9, 2015 was not a decision
amenable to judicial review.
[2]
The factual background is detailed in the
Federal Court decision. It is sufficient to note that on September 21, 2012,
the Director, Military Careers Administration, determined that the appellant
should be released from the Canadian Armed Forces for sexual misconduct.
[3]
On October 26, 2012, the appellant was released
and ceased his active military service (Federal Court reasons at para. 6).
However, the release was only officially approved by the Governor in Council on
May 23, 2013. The appellant was paid his regular Force pay until October 26,
2012 but believes he should have been paid and had benefit and pension coverage
until May 23, 2013.
[4]
On January 27, 2015, his legal counsel wrote to
the Legal Advisor stating that unless the matter was settled, the appellant
intended to file an action to seek compensation for his ‘regular Force pay’
between October 26, 2012 and May 23, 2013, as well as an increase of his
pension and retirement benefits as a result of this additional seven-month
service, together with applicable interest and legal costs.
[5]
The letter dated July 9, 2015 (Appeal Book, Tab
4, at p. 30) that is the subject of the application for judicial review is a
reply to this demand. It is marked “without prejudice”
and provides the Crown’s position in relation to the appellant’s claim. It
indicates that “according to paragraph 208.31 of the
QR&O, a Canadian Forces member who does not provide military service may
have his pay ceased … The date on which the Governor General approved the
release does not modify the date upon which military services has ceased to be
provided.”
[6]
The signatory adds that “there
is no liability on the part of the Crown and no compensation can therefore be
offered”. The letter concludes by stating that this consideration of the
claim is made “strictly without prejudice to Her
Majesty’s right to raise any Defence available to Her at law, and is not to be
taken as a waiver of any available limitation period that may apply”.
[7]
The applicant, who now represents himself,
submits that the Federal Court erred in finding that this was not a decision
amenable to judicial review. He submits that the Legal Advisor is authorized to
negotiate settlements in respect of his claim against DND and that the refusal
to do so affects his rights to a timely settlement of his claim in accordance
with DND and Treasury Board directives. I cannot agree.
[8]
The directives to which the appellant referred
to are policies, not law, and they do not provide the appellant a legal right to
the settlement of his claim. Even if the appellant is correct in asserting that
he was entitled to the monies he claims, he has no legal right to require Her
Majesty to settle his claim. Because the policies in issue do not provide legal
rights, a decision taken under them is not amenable to judicial review: Air
Canada v. Toronto Port Authority, 2011 FCA 347 at para. 29, [2013] 3 F.C.R.
605.
[9]
While I appreciate that the appellant may well
think it would be more expedient if he were able to bring the issue of his
entitlement to the monies he seeks before the courts by way of a judicial
review application as opposed to an action, that does not entitle him to an
administrative law remedy when there has been no reviewable decision made.
[10]
There was some discussion at the hearing about
whether the Federal Court should have converted the application of the
appellant into an action. This issue is not raised in the Notice of Appeal and
we agree with the Attorney General that at the hearing before the Federal
Court, the Court was not asked to do so.
[11]
I would therefore dismiss this appeal with costs
fixed at an amount of $1000.00 (all inclusive).
"Johanne Gauthier"
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“I agree
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D.G. Near J.A.”
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“I agree
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Mary J.L.
Gleason J.A.”
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