Date: 20041125
Docket: T-2322-03
Citation: 2004 FC 1657
Ottawa, Ontario, the 25th day of November 2004
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
PATRICK PRENTICE
Plaintiff
and
HER MAJESTY THE QUEEN in right of Canada,
represented herein by the Royal Canadian Mounted Police
Defendant
REASONS FOR ORDER AND ORDER
Introduction
[1] This case concerns a motion by the defendant to dismiss an action for lack of jurisdiction in this Court ratione materiae. The defendant's motion also seeks an order striking out the plaintiff's statement of claim because it discloses no cause of action.
Facts
[2] The plaintiff brought an action against the defendant to claim $3,250,000 damages as a remedy for infringement of his rights guaranteed by sections 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11 (the Charter). The plaintiff is claiming this remedy pursuant to subsection 24(1) of the Charter.
[3] The plaintiff has been employed by the Royal Canadian Mounted Police (RCMP) since 1976. He has served primarily in Newmarket and Hamilton in Ontario, as well as being assigned to two peace missions in Namibia and Yugoslavia. He was discharged from the RCMP on medical grounds in January 2, 2004.
[4] The plaintiff argued that the RCMP and his superiors did not prepare him properly for the stressful and traumatizing events occurring during his assignment to peace missions abroad, which affected his health, and this infringed his rights guaranteed by the Charter.
Points at issue
[5] The defendant raised the following points in her motion:
(1) Does the Federal Court have jurisdiction ratione materiae over the plaintiff's action in order to award damages pursuant to subsection 24(1) of the Charter?
(2) Does the plaintiff's action disclose a cause of action?
Analysis
[6] The defendant's motion to dismiss the action and strike out the statement of claim is filed pursuant to paragraphs 208(d) and 221(1)(a) of the Federal Court Rules (1998), SOR/98-106 (the Rules).
| 208. A party who has been served with a statement of claim and who brings a motion to object to
(d) the jurisdiction of the Court,
does not thereby attorn to the jurisdiction of the Court.
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208. Ne constitue pas en soi une reconnaissance de la compétence de la Cour la présentation par une partie :
d) d'une requête contestant la compétence de la Cour. |
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| 211. (1) On motion, 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
(a) discloses no reasonable cause of action or defence, as the case may be,
and may order the action be dismissed or judgment entered accordingly. |
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211. (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d'un acte de procédure, avec ou sans autorisation de la modifier, au motif, selon le cas :
a) qu'il ne révèle aucune cause d'action ou de défense valable;
Elle peut aussi ordonner que l'action soit rejetée ou qu'un jugement soit enregistré en conséquence. |
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[7] It is settled law that the threshold which must be passed for such a motion to be granted is very high. It must be plain and obvious beyond all doubt that the action is doomed to failure and is not based on any reasonable cause of action: Hunt v. Carey Can. Inc., [1990] 2 S.C.R. 959; Operation Dismantle Inc. v. Her Majesty the Queen, [1985] 1 S.C.R. 441; Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735. In cases where the Court does not have jurisdiction over the litigation, the action must necessarily be struck out: Chase v. Canada, [2004] F.C.J. No. 311, on line: QL.
[8] The Federal Court has jurisdiction to hear proceedings in which a plaintiff alleges an infringement of a right guaranteed by the Charter and seeks a remedy under section 24: Townsend v. Canada (1994), 74 F.T.R. 21.
[9] Essentially, the motion before this Court concerns the question of the extent to which legislation providing for the granting of pensions or compensation and the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (the CLPA) affect claims based on section 24 of the Charter. The Court has already ruled that the state of the law on this question is not settled: Duplessis v. Canada, [2001] F.C.J. No. 1455, on line: QL; affirmed by [2002] F.C.J. No. 1277, on line: QL.
[10] First, in the defendant's submission, the plaintiff's action should be struck out and dismissed because, as it is based on paragraphs 17(2)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7 (FCA) and 3(1)(b) of the CLPA, any resort to the courts is prohibited under section 9 of the latter Act, when a loss creates entitlement to the payment of a pension or compensation:
| 9. No proceeding lies against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made.
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9. Ni l'État ni ses préposés sont susceptibles de poursuites pour toute perte - notamment, décès, blessure ou dommage - ouvrant droit aux paiement d'une pension ou indemnité sur le Trésor ou sur des fonds gérés par un organisme mandataire de l'État. |
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[11] The defendant further argued that this Court is not the proper authority to decide the matter and that the plaintiff's cause of action is without foundation, because he could have used various legislative means of obtaining this pension or compensation, in particular:
(a) as the plaintiff relied on causes of action that arose in the course of his duties in the RCMP, the grievance procedure provided for in Part III of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the RCMPA);
(b) the procedure provided for in Part II of the Canada Labour Code, R.S.C. 1985, c. L-2, which requires the RCMP to protect the health and safety of its members;
(c) the complaint procedure set out in section 40 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the CHRA), to put forward the allegation of health-related discrimination;
(d) the procedure set out in sections 19(a), 20, 22 and 28 of the Royal Canadian Mounted Police Regulations (1988), SOR/88-361, dealing with discharges on medical grounds;
(e) indemnities for temporary injury or illness under sections 34, Royal Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11 (the RCMPSA), and 4, Government Employees Compensation Act, R.S.C. 1985, c. G-5 (the GECA);
(f) indemnities for permanent injuries or diseases provided for in section 32 of the RCMPSA.
In the defendant's opinion, these other remedies and the immunities relating thereto divest the Federal Court of jurisdiction to hear the action at bar: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929.
[12] For his part, the plaintiff considered that this Court is the most proper forum in which to make his claim. He is not alleging that the Crown has committed delict or quasi-delict, but that it has failed to perform obligations imposed by the Charter. In his submission, therefore, this Court has jurisdiction over the action under subsection 17(1) of the FCA, since it must interpret and apply the Charter to determine whether the plaintiff should be granted a remedy.
[13] I accept the plaintiff's argument in opposition to that of the defendant, that under sections 18 and 18.1 of the FCA judicial review is the procedural vehicle indicated since the decision to participate in peace missions was made in the exercise of the Royal Prerogative: Operation Dismantle v. Canada, [1985] 1 S.C.R. 441. The plaintiff responded that he does not dispute the validity of these orders. Rather, he alleged that the defendant infringed the Charter by not preparing him properly for the missions to which he was assigned and not giving him adequate follow-up when he returned. On this point, the Federal Court has jurisdiction to hear the matter.
[14] In view of the test to be applied to decide the motion before the Court, I do not feel I am able to say that this action is beyond all reasonable doubt, clearly or apparently, doomed to failure or without a reasonable basis. I note that, in general and as established in Sarvanis v. Canada, [2002] 1 S.C.R. 921, section 9 of the CLPA is a bar to an action against the government, since the pension or compensation paid has the same factual basis as the action. However, it has to be said that in my opinion special treatment is given to cases where the action is brought to obtain a remedy under section 24 of the Charter.
[15] I adopt the reasoning applied by the Federal Court of Appeal in a case mentioned in the case at bar, namely Dumont v. Canada; Drolet c. Canada, [2003] F.C.J. No. 1857, on line: QL, at para. 78:
The appellants did not explain in any way how section 7 of the Charter has been infringed. However, in the event that the defendant 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.
[16] The same idea emerges from this Court's judgment in Townsend, in which the plaintiff sought compensation for damage sustained in the course of employment, some of which resulted from an alleged breach of the Charter:
The issue of the justiciability of Charter infringement allegations has been considered by the courts. In Weber v. Ontario Hydro [See Note 6 below], where the appellant sought a declaration of a Charter violation, Arbour J.A. noted the fact that Charter rights are individual rights and that there should be as little impediment or restraint as possible on the individual's right to seek constitutional redress in the courts. (para. 17)
It appears, then, that an alleged infringement of an individual's Charter rights is properly justiciable in this court. Since the Plaintiff has claimed damages as a result of the Charter infringement as well as a declaration to this effect, this Court is a "court of competent jurisdiction" within the meaning of section 24 of the Charter for the purposes of granting an appropriate remedy. (para. 18)
[17] Thus, the general rule discussed above, the purpose of which is to avoid double compensation, seems to be excluded in cases where the claim is based on a breach of one or more rights guaranteed by the Charter. I feel that there is a distinction between the claim before the Court in the case at bar and a claim which might potentially result in the payment of a pension or compensation. The remedy sought in the case at bar is one which is designed to establish a breach of a fundamental right guaranteed by the Charter. If the breach is established, it will be for the judge responsible for applying subsection 24(1) of the Charter to determine the right and proper remedy, deciding whether the granting of a pension or compensation usually obtained by force of legislation is adequate, or whether compensation should be added to it.
Conclusion
[18] Since I am unable to conclude beyond all doubt that the action at bar is without foundation and that this Court lacks jurisdiction, the defendant's motion to dismiss and to strike the action is dismissed with costs to the plaintiff.
ORDER
THE COURT ORDERS:
1. The defendant's motion is dismissed with costs to the plaintiff.
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"Edmond P. Blanchard"
Judge |
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2322-03
STYLE OF CAUSE: Patrick Prentice v. Her Majesty the Queen
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: August 26, 2004
REASONS [FOR ORDER OR JUDGMENT]: The Honourable Mr. Justice Edmond P. Blanchard
DATED: November 25, 2004
APPEARANCES:
Jacques Ferron FOR THE PLAINTIFF
Raymond Piché FOR THE DEFENDANT
Nadine Perron
SOLICITORS OF RECORD:
Jacques Ferron FOR THE PLAINTIFF
502 - 5500 boul. des Galeries
Québec, Quebec G2K 2E2
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
200 boul. René-Lévesque
Montréal, Quebec H2Z 1X4
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FEDERAL COURT
Docket: T-2322-03
BETWEEN:
Patrick Prentice
Plaintiff
- and -
HER MAJESTY THE QUEEN in right of Canada, represented herein by the Royal Canadian Mounted Police
Defendant
REASONS FOR ORDER AND ORDER
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