Date: 20001204
Docket: T-531-99
Ottawa, Ontario, December 4, 2000
Before: Pinard J.
Between:
JEAN-CLAUDE MICHAUD
Plaintiff
- and -
THE ATTORNEY GENERAL OF CANADA
- and -
THE MINISTER OF NATIONAL DEFENCE
Defendants
JUDGMENT
The plaintiff's action is dismissed with costs.
YVON PINARD
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20001204
Docket: T-531-99
Between:
JEAN-CLAUDE MICHAUD
Plaintiff
- and -
THE ATTORNEY GENERAL OF CANADA
- and -
THE MINISTER OF NATIONAL DEFENCE
Defendants
REASONS FOR JUDGMENT
PINARD J.
[1] The plaintiff is seeking a declaration by this Court that the 275 days during which he served in the Canadian Forces, between August 15, 1992 and September 3, 1993, are days carrying a pension entitlement, contrary to the decision made by the administrative authorities responsible for administering the Public Service Superannuation Act, R.S.C. 1985, c. P-36 ("the PSSA"), applicable to reservists in the Canadian Forces.
[2] The plaintiff, 59 years old, was a formation commander in the Maritime Command of the Canadian Forces and held the position of commander of the Naval Reserve from August 15, 1992 to September 1, 1995, thereby completing 24 years of service with the armed forces.
[3] On October 3, 1995 he was appointed to the position of chairman of the Laurentian Pilotage Authority, a federal government Crown corporation, pursuant to Order in Council P.C. 1995-1674, in accordance with s. 3(2) of the Pilotage Act, S.C. 1970-71-72, c. C-52.
[4] The plaintiff served as commander of the Naval Reserve for a total of 1,012.5 days, 275 of which were classified "A", for the period from August 15, 1992 to September 3, 1993, and 725 were classified "B", for the period from September 7, 1993 to September 1, 1995. Only the days classified as Class B were recognized for purposes of pension repurchase.
[5] It is the application of s. 6(1)(b)(iii)(C) of the PSSA that must be considered in the case at bar to determine whether the service done by the plaintiff during the 275 days at issue was pensionable:
| 6. (1) Subject to this Part, the following service may be counted by a contributor as pensionable service for the purposes of this Part: . . . . . (b) elective service, comprising . . . (iii) with reference to any contributor . . . (C) any continuous period of full-time service of six months or more in the Canadian Forces or the naval, army or air forces of Her Majesty raised by Canada or as a special constable of the Force who ceased to be a special constable of the Force on or after March 1, 1949, except any such period described in clause (A) or (G) of this subparagraph, if he elects, within one year of becoming a contributor under this Part, to pay for that period . . . |
6. (1) Sous réserve des autres dispositions de la présente partie, le service qui suit peut être compté par un contributeur comme service ouvrant droit à pension pour l'application de la présente partie: . . . . . b) le service accompagné d'option, comprenant . . . (iii) relativement à un contributeur . . . (C) toute période continue de service à plein temps d'une durée minimale de six mois, dans les Forces canadiennes ou les forces navales, les forces de l'armée, ou les forces aériennes de Sa Majesté, levées par le Canada ou comme gendarme auxiliaire de la Gendarmerie qui a cessé d'être un gendarme auxiliaire de la Gendarmerie le 1er mars 1949 ou après cette date - à l'exception de toute période semblable décrite à la division (A) ou (G) du présent sous-alinéa -, s'il choisit, dans le délai d'un an après qu'il est devenu contributeur selon la présente partie, de payer pour cette période . . . |
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[6] Also relevant to the disposition of the case at bar are ss. 18(1) and (3) and 18.1(1) and (2) of the Federal Court Act, R.S.C. 1985, c. F-7, which read as follows:
| 18. (1) Subject to section 28, the Trial Division has exclusive original jurisdiction (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. . . . . . (3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1. 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. (2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow. |
18. (1) Sous réserve de l'article 28, la Section de première instance a compétence exclusive, en première instance, pour : a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral; b) connaître de toute demande de réparation de la nature visée par l'alinéa a), et notamment de toute procédure engagée contre le procureur général du Canada afin d'obtenir réparation de la part d'un office fédéral; . . . . . (3) Les recours prévus aux paragraphes (1) ou (2) sont exercés par présentation d'une demande de contrôle judiciaire. 18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l'objet de la demande. (2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou accorder. |
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[7] In my opinion, for the following two reasons, each sufficient in itself to result in the dismissal of his action, the plaintiff did not establish that he was entitled to the declaration he was seeking :
(1) the plaintiff waited much too long to apply for the declaratory relief in question, without good reason;
(2) in any case, the plaintiff did not prove that the 275 days of work at issue were done within a continuous period of full-time service of six months or more, and so failed to comply with the requirements of s. 6(1)(b)(iii)(C) of the PSSA.
[8] On the first ground for dismissing the action, the senior pensions officer, Pensions Division, Treasury Board Secretariat of Canada, as the responsible officer, informed the plaintiff by letter of July 8, 1996 (received by counsel for the plaintiff on July 15, 1996) that he could not rely on s. 6(1)(b)(iii)(C) of the PSSA as a basis for making the 275 working days at issue pensionable. Rather than challenging this decision by an application for judicial review served and filed within the next 30 days, pursuant to ss. 18(1) and (3) and 18.1(1) and (2) of the Federal Court Act, he preferred to apply to Vice-Admiral Larry Murray, at the Department of National Defence, in an unsuccessful attempt to have his Class A service changed to Class B service for the period at issue from August 15, 1992 to September 3, 1993. By letter of May 30, 1997 Lt.-Gen. D.N. Kinsman of the Department of National Defence, whom Vice-Admiral Murray asked to reply to the plaintiff, confirmed the plaintiff's service classification for the 275 days at issue, a classification which the latter had known for a long time and which served as a factual base for the decision in question from the Treasury Board Secretariat. Lt.-Gen. Kinsman then also suggested the following to the plaintiff:
[TRANSLATION]
The only option you now have is to make a new approach to the appropriate government authority to try and have the provisions of the Public Service Superannuation Act amended.
[9] Nevertheless, it was not until March 23, 1999 that the plaintiff, who elected to proceed by an action for a declaratory judgment by this Court, filed his statement of claim in the case at bar.
[10] The plaintiff selected and used the wrong procedure. Sections 18(1) and (3) and 18.1(1) and (2) of the Federal Court Act required him to seek declaratory relief from the Trial Division of this Court by filing an application for judicial review within 30 days after the time the relevant and determinative decision was first communicated by the federal board, commission or other tribunal (the decision by the senior pensions officer Aaron Allen, of the Treasury Board Secretariat of Canada on July 8, 1996, a decision communicated to the plaintiff on July 15, 1996) or within such further time as a judge of the Trial Division might allow.
[11] Although in his order made on January 10, 2000 pursuant to Rule 265 the prothonotary was right not to quash the plaintiff's originating document solely on the ground that it should have been initiated by an application for judicial review, in view of Rule 57, that order did not thereby relieve the plaintiff of the duty to act within the prescribed deadline to file the originating document he should have filed or within such further time as a judge of this Court might fix or allow. At most, the prothonotary's order, in the absence of a formal motion to transform the action to an application for judicial review, might make it possible for the proceeding to go ahead as an action, which was done, since a trial at which witnesses were heard took place. In cases where the proper originating document is an application for judicial review Rule 57 certainly cannot have the effect of prohibiting the application of the filing deadline prescribed by s. 18.1(2) of the Federal Court Act. Taking the contrary view would invalidate ss. 18(3) and 18.1(2) of the Federal Court Act, since the litigant who is required to proceed by filing an application for judicial review could still proceed by action with impunity long after the filing deadline prescribed for this summary proceeding.
[12] Although in the case at bar the plaintiff was not required to file a formal motion for an extension of the applicable thirty-day deadline, I invited his counsel myself at the start of the hearing to file evidence in an effort to justify the long delay of nearly three years in applying for the declaratory relief sought. In his testimony, the plaintiff essentially explained that he still wanted to change the opinions of the persons responsible for evaluating his service during the 275 days at issue so that evaluation would lead to a pensionable result. In my view, this explanation cannot justify the significant delay of some two years and nine months in a context in which the Federal Court Act requires that a summary proceeding be filed within an original deadline of 30 days. Further, the evidence did not indicate any wish or intention by the defendants or their representatives during this lengthy period of delay to alter the decision of July 8, 1996 made by the representative of the Treasury Board Secretariat of Canada. Finally, had the plaintiff acted much earlier, the memory of the witness Peter Cairns, for example, in particular regarding classification of the plaintiff's service during the period at issue, would probably have been less deficient. It seems to the Court that considerations similar to those described by Strayer J. in Lancashire v. Canada (Treasury Board) (October 9, 1997), A-44-96, apply in the case at bar.
[13] On the second ground for dismissing the action, that relating to the merits of the fundamental decision of July 8, 1996 by the senior pensions officer at the Treasury Board Secretariat of Canada, the decision which the plaintiff seeks to contradict by the declaratory relief sought, he did not persuade the Court that the decision was wrong in law or in fact.
[14] To begin with, in law, the requirement that s. 6(1)(b)(iii)(C) of the PSSA should be applied to the plaintiff's case was not disputed. That is precisely the provision on which the relevant decision of the Treasury Board Secretariat, on July 8, 1996, was based.
[15] On the facts, s. 6(1)(b)(iii)(C) of the PSSA required the plaintiff to establish the existence of a "continuous period of full-time service of six months or more in the Canadian Forces". The schedule prepared and filed by the plaintiff himself, indicating the days and half-days on which he worked or provided his services in the Canadian Forces during the period at issue clearly indicates several interruptions of a day or more in doing the work or providing the service. Accordingly, the plaintiff did not meet an essential requirement of the provision in question, namely the establishing of a "continuous" period of service. Further, the plaintiff himself admitted that he waived requesting a new retroactive classification of his Class A service to Class B when he applied to have his service designated Class B as of September 7, 1993, and was successful in doing so. He explained that he acted in this way because of the newness of his position as commodore and budgetary limitations. He admitted that during his Class A service, although he thought he often spent as much time on it as Class B reservists spent on their service, he was unlike the latter required to sign daily salary claims, and was also exempt from being called to serve 24 hours a day, seven days a week. These types of service are described as follows in arts. 9.06 and 9.07 of Chapter 9 of the Queen's Regulations and Orders for the Canadian Forces (1994 revision), adopted by the Governor in Council pursuant to s. 12(1) of the National Defence Act, R.S.C. 1985, c. N-5:
| 9.06 - CLASS "A" RESERVE SERVICE (1) A member of the Reserve Force is on Class "A" Reserve Service when the member is performing training or duty in circumstances other than those prescribed under articles 9.07 (Class "B" Reserve Service) and 9.08 (Class "C" Reserve Service). (2) Class "A" Reserve Service includes proceeding to and returning from the place where the training or duty is performed, but not when that training or duty, including attendance at local parades, local demonstrations or local exercises, is performed at local headquarters. 9.07 - CLASS "B" RESERVE SERVICE (1) A member of the Reserve Force is on Class "B" Reserve Service when the member is on full-time service and: (a) serves in a temporary position on the instructional or administrative staff of a school or other training establishment conducting training for the Reserve Force, the Royal Canadian Sea Cadets, the Royal Canadian Army Cadets or the Royal Canadian Air Cadets; (b) proceeds on such training attachment or such training course of such duration as may be prescribed by the Chief of the Defence Staff; or (c) is on duties of a temporary nature approved by the Chief of the Defence Staff, or by an authority designed by him, when it is not practical to employ members of the Regular Force on those duties. (2) Class "B" Reserve Service includes proceeding to and returning from the place of duty. |
9.06 - SERVICE DE RÉSERVE DE CLASSE « A » (1) Un militaire de la force de réserve sert en service de réserve de classe « A » lorsqu'il accomplit l'instruction ou exécute des tâches dans des circonstances autres que celles qui sont prescrites au titre des articles 9.07 (Service de réserve de classe « B » ) et 9.08 (Service de réserve de classe « C » ). (2) Le service de réserve de classe « A » comprend le temps consacré pour se rendre au lieu où l'instruction ou le service est accompli et en revenir, sauf dans le cas où l'instruction ou le service en question, y compris toute séance locale de rassemblement, de démonstration ou d'exercice, est accompli dans un quartier général local. 9.07 - SERVICE DE RÉSERVE DE CLASSE « B » (1) Un militaire de la force de réserve sert en service de réserve de classe « B » lorsqu'il accomplit du service à plein temps et que selon le cas, il: a) sert à titre temporaire en qualité de membre du personnel des instructeurs ou du personnel administratif d'une école ou de tout autre établissement de formation où se donne de l'instruction pour la force de réserve, les Cadets royaux de la Marine canadienne, les Cadets royaux de l'Armée canadienne ou les Cadets royaux de l'Aviation canadienne; b) est envoyé, soit en affectation pour fins d'instruction, soit à un cours d'instruction pour une période que peut prescrire le chef d'état-major de la défense; c) est affecté à des tâches de nature temporaire sur l'autorisation du chef d'état-major de la défense ou d'une autorité désignée par lui, lorsqu'il n'est pas pratique d'affecter des militaires de la force régulière à ces tâches. (2) Le service de réserve de classe « B » comprend le temps consacré pour se rendre au lieu de service et en revenir. |
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[16] It thus appears that the Class A reserve service is necessarily part-time service, since art. 9.06 above states that it involves duty "in circumstances other than those prescribed under articles 9.07 (Class "B" Reserve Service) and 9.08 (Class "C" Reserve Service)" and article 9.07 above states that a member of the Reserve Force is on Class B reserve service "when the member is on full-time service". This is also confirmed by article 2 of Appendix 1, in Schedule A of the NDHQ Instruction (ADM (Per)2/93) of April 1, 1993, an internal measure of the Department of National Defence which does not have the effect of law but which is nevertheless useful in considering the applicable factual background:
2. CI A Res Svc shall be used for short periods of Res Svc with a maximum of 12 consecutive days of paid service. The maximum number of class A days per month and/or per year which any one member can serve may be specified by the Commander of the Command.
[17] All this evidence shows, therefore, that during the period at issue the plaintiff willingly agreed to provide Class A reserve service, service which was essentially part-time, although the plaintiff may have spent as many hours or days on it as a Class B reservist. Accordingly, not only was the requirement of a continuous period of service not met, but neither was the requirement of "full-time service of six months or more". The factual basis for applying s. 6(1)(b)(iii)(C) of the PSSA to the plaintiff's case thus seems quite clear from the evidence.
[18] The plaintiff's action is accordingly dismissed with costs.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
December 4, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-531-99
STYLE OF CAUSE: Jean-Claude Michaud and The Attorney General of
Canada and the Minister of National Defence
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 17, 2000
REASONS FOR JUDGMENT BY: PINARD J.
DATED: December 4, 2000
APPEARANCES:
Guy J. Major FOR THE APPLICANT
Raymond Piché FOR THE RESPONDENT
SOLICITORS OF RECORD:
Guy J. Major FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada