Date: 20000425
Docket: T-759-99
OTTAWA, ONTARIO, APRIL 25, 2000
Before: NADON J.
Between:
MARCO LAMARRE,
Plaintiff,
- and -
ATTORNEY GENERAL OF CANADA and
VALCARTIER AND BAGOTVILLE
CANADIAN FORCES BASE,
Defendants.
ORDER
The plaintiff's application for judicial review is dismissed without costs.
Marc Nadon
Judge
Certified true translation
Martine Brunet, LL. B.
Date: 20000425
Docket: T-759-99
Between:
MARCO LAMARRE,
Plaintiff,
- and -
ATTORNEY GENERAL OF CANADA and
VALCARTIER AND BAGOTVILLE
CANADIAN FORCES BASE,
Defendants.
REASONS FOR ORDER
NADON J.
[1] The plaintiff is challenging a decision by Hon. Arthur C. Eggleton, Minister of National Defence ("the Minister"), on March 23, 1999 which refused to consider a claim for compensation for injustice ("the compensation claim") filed by the plaintiff in December 1997 pursuant to s. 29 of the National Defence Act, R.S.C. 1985, c. N-5. The Minister's letter reads as follows:
| [TRANSLATION] |
| Thank you for your letter of December 16, 1998 in which you ask me to submit your grievance of December 16, 1997 to the Governor in Council. Please excuse the delay in replying. |
| I should like to point out that on October 22, 1998 I replied to the letter your M.P., Mr. Marchand, sent me about you and in which he asked me to rule on the merits of your grievance. At that time I indicated that, since you were no longer a member of the Canadian Forces in December 1997, under the National Defence Act you were not entitled to submit a claim for compensation for injustice. Please find enclosed for information purposes a copy of my reply to Mr. Marchand. |
| A review of your case only confirmed the position indicated to your M.P. last October. Further, while you were a member of the Canadian Forces you did not file a claim for compensation for injustice pursuant to s. 29 of the Act and s. 19.6 of the Queen's Regulations and Orders for the Canadian Forces, and there is at the present time no application on which the Department could rule. |
| As to the decision by Yves Alain J. of the Superior Court of Quebec on November 13, 1997, I should make the following observations. It is true that Alain J. mentioned that a soldier must exhaust all remedies available under s. 29 of the National Defence Act before applying to the civilian courts. However, he could not give you rights that you did not have under that Act or give you back rights that you had not exercised. |
| Additionally, I should point out that the Queen's Regulations and Orders for the Canadian Forces were amended on December 2, 1994. Since that date, no grievances are forwarded to the Governor in Council since the Minister of National Defence is the final level of the proceeding. |
| For all these reasons, I cannot allow your application for review of your case. |
| Yours truly, |
[2] As appears from the Minister's letter, the latter dismissed the plaintiff's claim for redress on the ground that he was not a member of the Canadian Armed Forces ("C.A.F.") when he filed his claim for redress in December 1997.
[3] The plaintiff's position is quite straightforward. He claims that he filed grievances for harassment and abuse of power in 1992 when he was a soldier at the Baden-Baden base in Germany and that these grievances constituted his claim for redress. In other words, the filing of his document dated December 16, 1997, titled [TRANSLATION] "GRIEVANCES-COMPLAINTS-CLAIM", is only a continuance of the grievances filed in 1992.
[4] The defendant disagreed completely with the plaintiff's position. He argued that the complaint of harassment filed by the plaintiff in 1992 did not constitute a claim for redress within the meaning of s. 29 of the National Defence Act, which reads as follows:
| 29. Except in respect of a matter that would properly be the subject of an appeal or petition under Part IX or an application or appeal under Part IX.1, an officer or non-commissioned member who considers that he has suffered any personal oppression, injustice or other ill-treatment or that he has any other cause for grievance may as a matter of right seek redress from such superior authorities in such manner and under such conditions as shall be prescribed in regulations made by the Governor in Council. |
[5] In order to clarify the issue between the parties, I should relate certain facts. On July 3, 1983 the plaintiff was sworn into the C.A.F. On June 30, 1990 he was transferred to NATO, to the C.A.F.'s base at Baden-Baden. In January 1992 the plaintiff filed grievance-complaints about the conduct of certain officers. In particular, the plaintiff alleged he had been the victim of harassment and abuse of power by Sgt. Breault and C. Cpl. P.G. O'Keefe. In April 1992 the plaintiff was transferred to section 9BF under the orders of Cpl. C. McNab. The plaintiff was later transferred to section 6DC. In March 1993 the plaintiff was transferred to the Valcartier base at Quebec. Finally, on March 16, 1994 the plaintiff was released from the C.A.F.
[6] On March 6, 1997 the plaintiff filed an action for damages against Her Majesty the Queen in right of Canada in the Superior Court of the province of Quebec for unjust dismissal. On November 18, 1997 the Superior Court dismissed the plaintiff's action on the ground that his action was inadmissible. On December 16, 1997 the plaintiff filed the document titled [TRANSLATION] "GRIEVANCES-COMPLAINTS-CLAIM". This document was filed at the Valcartier C.A.F. base and given to Capt. G. Bouchard. On March 23, 1999 the Minister dismissed the plaintiff's claim for redress.
[7] At the close of the hearing of the plaintiff's application for judicial review in Quebec on April 13, 2000, I informed the parties that the application would be dismissed for the following reasons.
[8] The plaintiff had the burden of showing that he had in fact filed his claim for redress within the meaning of s. 29 of the National Defence Act before he was released from the C.A.F. The plaintiff was unable to establish this. There was no evidence in this Court that a claim for redress within the meaning of s. 29 of the National Defence Act was filed before the plaintiff was released. It is worth noting paragraph 5.1 of the plaintiff's claim for redress, dated December 16, 1997. That paragraph reads as follows:
| [TRANSLATION] |
| 5.1 January 1992: the plaintiff filed grievance-complaints with the assistance of Sgt. J.C.F. Fisette, who was one of the only managers who approached the situation with professionalism, namely 32 counts of harassment and abuse of power against Sgt. G.L. Breault and C. Cpl. P.G. O'Keefe, his immediate supervisors. |
[9] As I indicated earlier, the document referred to in paragraph 5.1 in the plaintiff's submission constitutes the filing of a claim for redress before he was released from the C.A.F. Strangely, the plaintiff filed no copy of this document. Further, he gave no explanation, and did not try to explain, in his affidavit why the document was not available. At the hearing, I asked counsel for the plaintiff why his client had not obtained an affidavit from Sgt. Fisette, who the plaintiff said helped him to prepare a document including 32 counts of harassment and abuse of power. The reply by counsel for the plaintiff was one that surprised me, namely that the plaintiff considered that it was up to the defendant to produce this document. In my opinion, this position is without basis. The burden of establishing that he had filed a claim for redress before his release lay with the plaintiff, and as I indicated earlier he was unable to meet that burden.
[10] It is also important to note that the plaintiff was released from the C.A.F. on March 16, 1994 and filed his action against Her Majesty the Queen in right of Canada in March 1997, that is three years after his release. It was not until his action was dismissed in the Superior Court of Québec that he filed his claim for redress on December 16, 1997. In view of these facts, it is difficult to believe that the plaintiff filed a claim for redress in 1992. What is also surprising is that the plaintiff was unable to give any details whatever about his alleged grievance, except for the allegation in paragraph 5.1 of the document dated December 16, 1997. I concur entirely in the arguments of the defendant, appearing at paragraphs 42, 43 and 44 of his memorandum, which read as follows:
| [TRANSLATION] |
| 42. If the plaintiff had filed a grievance within the meaning of s. 29 of the National Defence Act, there would have been correspondence about this grievance, acknowledgements of receipt, written replies. It would seem impossible for no trace to have been left in the file of grievance PPE 831, since the latter are kept for a minimum of five years after the date of the final administrative decision taken in the matter. |
| 43. The defendant further submits that it seems improbable that the plaintiff kept no copies of that documentation, acknowledgements of receipt or even a copy of the written replies he received from the redress authorities, for either of the two grievances that he alleged he filed in 1992. |
| 44. If the alleged grievance filed in 1992 had followed the grievance procedure, the plaintiff would have had to ask the authorities to give him reasons in support of the suspension of his alleged grievance. If allowed, the redress authority before whom his claim for redress stood at the time would have informed him of its suspension in writing. |
[11] Consequently, I have come to the conclusion that the plaintiff's application for judicial review should be dismissed.
Marc Nadon
Judge
O T T A W A, Ontario
April 25, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-759-99
STYLE OF CAUSE: MARCO LAMARRE v.
ATTORNEY GENERAL OF CANADA et al.
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: April 13, 2000
REASONS OR ORDER BY: NADON J.
DATED: April 25, 2000
APPEARANCES:
Denis Falardeau for the plaintiff
Rosemarie Millar for the defendants
SOLICITORS OF RECORD:
Monaghan & Falardeau for the plaintiff
Québec, Quebec
Morris Rosenberg for the defendants
Deputy Attorney General of Canada
Ottawa, Ontario