Federal Court Decisions

     T-868-96

Between:

     BRADFORD C. JUNKIN,

     Plaintiff,

     - and -

     HER MAJESTY THE QUEEN,

     THE MINISTER OF NATIONAL DEFENCE,

     DENNIS R. DUPUIS,

     Defendants.

     REASONS FOR ORDER

JOHN A. HARGRAVE

PROTHONOTARY

     In this action the Plaintiff sues the Defendants, The Queen, The Minister of Defence, and two named members of the military for leading his career astray and for wrongfully denying his legitimate expectations. The Defendants now seek to have the action struck out under Rule 419, principally on the basis that the Statement of Claim contains no cause of action and secondly, that it is an abuse of process. In either case the Defendants say the Court has no jurisdiction.

     At this point I will digress on a procedural matter. The better approach, when jurisdiction is at issue, is to proceed not under Rule 419, but rather under Rule 401. However, an oversight in setting out the correct rule will not defeat the motion: see Rule 302, Cairns v. Farm Credit Corporation, [1992] 2 F.C. 115 and Banerd v. Canada (1994), 88 F.T.R. 14. In any event the Banerd case establishes that the test to be applied in striking out for want of jurisdiction under Rule 401 is the same as that under Rule 419 (Banerd at p.20).

     The current definitive statement on the test to be applied in striking out a pleading is that enunciated by Madam Justice Wilson in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at 980:

Most recently, in Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279, I made clear at p.280 that it was my view that the test set out in Inuit Tapirisat was the correct test. The test remained whether the outcome of the case was "plain and obvious" or "beyond reasonable doubt".

Thus, the test in Canada ...assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff form proceeding with his or her case.

     Thus the test I must apply is whether it is plain and obvious or, phrased another way, beyond reasonable doubt, that the action will not proceed, Madam Justice Wilson added that only if an action was certain to fail by reason of a radical defect, ought material to be struck out. She went on to refer to the B.C. Supreme Court Rule equivalent of our Rule 419.

     The complexity of the argument on a motion to strike out has no bearing:

The fact that reaching a conclusion on this preliminary issue requires lengthy argument will not be determinant of the matter nor will the novelty of the cause of action militate against the Plaintiffs. (Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 at 477)

I now turn to the facts to which the foregoing principles are to be applied.

SOME PERTINENT FACTS

     I must accept the facts set out in the Statement of Claim as if proven. The Statement of Claim sets out that the Plaintiff, a Sergeant of the Canadian Armed Forces, at material times served as an air traffic controller, initially at Canadian Forces Base Edmonton: he was advised that he was about to become supervisor at CFB Edmonton.

     The Plaintiff made it clear to the Defendants that his alternatives were either to remain in the service at Edmonton, where his wife was employed or, if he was to be posted elsewhere, to retire from the Military Service under the Force Reduction Program of 1994 (the "FRP"). Indeed, the Plaintiff had opted to retire in December of 1995, after some 20 years of service by taking advantage of the FRP program. The Plaintiff discussed these options with the Defendants, Major Wolfe-Milner and Chief Warrant Officer Dupuis (the latter being the Plaintiff's military career manager) and on the assurances of Warrant Officer Dupuis, that he would not be posted outside of Edmonton, the Plaintiff withdrew his FRP early retirement application. Several weeks after the withdrawal of the FRP application and after the FRP program had been closed off, the Plaintiff was posted to CFB Winnipeg.

     Leading up to damages the Plaintiff says that as a result of relying upon advice from the Defendants and being deprived of his legitimate expectations he finds himself grossly under employed at this posting at Winnipeg. In addition, his wife, who was gainfully employed as french teacher in Edmonton, has not been able to find employment in Winnipeg; that he lost substantial money on the sale of his Edmonton residence; that the cost of living is higher in Winnipeg than it was in Edmonton; that by reason of the wrongful posting he has suffered inconvenience and mental distress at the disruption not only of his immediate family unit, but also of an extended family; and finally that he has lost the benefit that would have accrued to him under the FRP early retirement package (although he concedes that an application under the FRP program did not necessarily mean

he would be accepted for the program). By way of relief the Plaintiff seeks judicial review, general damages of $75,000.00 and special damages.

     The parties agreed at the hearing of this motion that the Plaintiff had properly exhausted the Military grievance and appeal process. There is no indication in the material as to the nature of the relief sought through the grievance procedure. I can only conclude it was not relief in the nature of damages, but rather a review of the Military's decision to transfer the Plaintiff to Winnipeg.

ANALYSIS

     The Defendants, in their submissions, take the position that the Military grievance procedure is a complete bar to any further proceedings, save judicial review. I now turn to the legislation, regulations and orders bearing on redress of grievances in the Military.

Grievance Procedure

     The Defendant begins by referring to the Canadian Forces grievance procedure as set out in Section 29 of the National Defence Act, R.S.,1985 Chapter N-5:

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

     Sections 19.26 and 19.27 of the Queen's Regulations and Orders deal with grievance procedure including its hierarchical structure.

     Canadian Forces Adminstration Order 19-32, called "Redress of Grievance" contains largely procedural material. Section 26 comes into play when a member of the Armed Forces initiates "an action, claim or complaint under an Act of Parliament in another forum such as the Federal Court..." in the situation where a grievance has already been submitted. In such a case Sections 19.26(16) and (17) of the Queen's Orders and Regulations come into play to stay the grievance procedure.

     For the purpose of this motion it is important to keep in mind Section 26 of the Canadian Forces Adminstration Order 19-32 specifically recognizes that there can be relief outside of the grievance procedure by way of an "action or claim" in the Federal Court.

Consideration

     Counsel for the Defendants has little case law bearing on Section 29 of the National Defence Act and the orders and regulations setting out the grievance procedure, other than contractual cases, but rather argues by analogy.

     In Jones v. Canada (1995) 87 F.T.R 190, Mr. Justice Cullen struck out a claim by a former member of the Military who sought redress for breach of contract and wrongful dismissal. Central to the Jones decision is the proposition that there is no contractual relationship between the Crown and a member of the Armed Forces. Mr. Justice Cullen did go on, after striking out the whole of the statement of claim, to say the statement of claim was also "vulnerable to being struck" on the basis of Section 29 of the National Defence Act. However the Jones case can be distinguished in a number of ways. First, it is a case in contract; second, the comments on the National Defence Act are observations and are not required as a statement of claim had already been struck out; and third, there is no reference to the applicable orders and regulation which clearly envision the possibility of Federal Court Action to obtain redress by way of an action or claim.

     The Defendants next refer to Townsend v. Canada (1994) 74 F.T.R. 21. But that is again a wrongful dismissal and contract case in which the plaintiff was employed at the pleasure of Her Majesty. In addition there was a collective agreement setting out an explicit remedial procedure. In the present instance not only is wrongful dismissal not the issue, but also the grievance procedure recognizes a possibility of an "action" in the Federal Court.

     Counsel for the Defendants refers to Gallant v. The Queen (1978) 91 D.L.R. (3rd) 695 (F.C.) for the proposition that the courts are reluctant to become involved in issues between the Crown and a member of the Armed Forces. The Gallant case is a wrongful dismissal case in which Mr. Justice Marceau emphasised that there was no contractual commitment by the Crown.

     The Defendants recognize the cases they refer to are contractual cases, but submit the same principles ought to apply in tort, so as to require the statement of claim to be struck out for want of jurisdiction. The Defendants also submit there is no such cause of action as "wrongfully posting" to Winnipeg. But that is not what the Plaintiff claims. Rather, I read the statement of claim as setting out a situation in which the Plaintiff either relied on wrong information negligently given, or was deceived. I am not prepared to say it is plain and obvious and beyond doubt that Sergeant Junkin will not succeed in the tort aspect of his claim on the basis of these cases and the legislation, orders and regulations which apply.

     The decision of Mr. Justice Wetston in Pilon v. The Queen, an unreported decision of September 20, 1996 in Action T-1831-94 stands on a somewhat different footing. There the claim of the plaintiff, a former member of the Armed Forces was in both contract and tort. Mr. Justice Wetston pointed out that the plaintiff did have access to a grievance procedure and was required to avail herself of that procedure. Mr. Justice Wetston does go on to suggest that recourse, after utilizing the Section 29 grievance procedure, would be by way of judicial review. The fact that the plaintiff in the Pilon case had not exhausted the required grievance produce sets the Pilon case apart from that of Sergeant Junkin. The comment in the Pilon case that the plaintiff recourse would be by way of judicial review, once the grievance procedure was exhausted, is obiter. The is nothing in the Pilon case to make it plain and obvious that a plaintiff would have no chance of success in a tort action. I am re-enforced in this view by a motion that came before Mr. Justice Rothstein on January 26, 1996 to strike out pursuant to Rule 419, the statement of claim in Mesquita v. The Queen, action T-2439-94, an action against The Canadian Armed Forces and The Queen in tort, for negligently failing to properly look after the health of Mr. Mesquita: the application to strike out was dismissed.

     Webb v. Ernst (1992) 76 MAN. R. (2d) 311 (MAN.C.A.) is a similar case in that the plaintiff did not invoke the required dispute resolution procedure under the Manitoba Civil Service Act and Regulations.

     A portion of the relief sought by Sergeant Junkin is judicial review of the decision of the Defendants to transfer him, which he says wrongfully denied him his legitimate expectations. Judicial review may be obtained by an application pursuant to Section 18.1 of the Federal Court Act, but not by way of a statement of claim: Mobarakizadeh v. Canada (1994) 72 F.T.R. 30.

     Counsel for the Plaintiff notes that Section 18.4(2n) provides for the treatment of a judicial review proceeding as an action and submits that through the application of the gap rule, Rule 5, the reverse ought to be allowed. In Lameman v. Gladue (1995) 95 F.T.R. 220 I dealt with just that issue, determining that the Court did not have the discretion to treat an action as a judicial review proceeding. In the Result paragraph (a) of the relief sought is struck out.

     Counsel for the Defendant submits that the Court does not have jurisdiction, in negligence, against Major Wolfe-Milner and Chief Warrant Officer Dupuis. This issue has been dealt with by the Court on a number of occasions, including recently by Mr. Justice Wetston in Arsenault v. Canada (1996) 104 F.T.R. 28 in which Mr. Arsenault, a former member of the Canadian Armed Forces sued the Crown and three Military doctors in negligence. Mr. Justice applied the test set out in Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd. [1986] 1 S.C.R. 752. He pointed out that there was no body of existing Federal Law to nourish the statutory grant of jurisdiction conferred on this Court by Section 17(5)(b) of the Federal Court Act. In the Arsenault case, as here, the plaintiffs pleaded The Crowns Liability and Proceedings Act. While that Act provides a body of existing Federal Law applicable to actions against the Federal Crown, the Act does not provide for a right of action against servants of the Crown. Servants of the Crown certainly have personal liability, however that liability would be pursuant to the general law of the province in which the tort was committed: see pp. 31 and 32 of the Arsenault decision. In the result the claim as against Major Wolfe-Milner and Chief Warrant Officer Dupuis is struck out for want of jurisdiction.

     Similarly, the Minister of National Defence is not a proper party for he can not be sued in a representative capacity, nor may he be sued in his personal capacity unless the torts alleged relate to acts done by him in his personal capacity: see for example Cairns v. Farm Credit Corp. [Supra] at p. 310.

     Counsel for the Plaintiff acknowledges that the Crown could be vicariously liable for actions of the individual Defendants but submits that much examination for discovery will be lost if the individuals may not be sued. This may to some degree be so, however it is for the Crown to produce a knowledgable witness for discovery: if there is a default in that obligation the Plaintiff may always apply for a second discovery witness. In short, even if there were a loss of a broader opportunity for discovery that does not permit the Court to go beyond it's statutory jurisdiction and retain a defendant over whom it has no jurisdiction.

CONCLUSION

     The onus on the defendants to show that it is plain and obvious, or beyond reasonable doubt that the Statement of Claim discloses no reasonable cause of action and will not succeed is a heavy one. The Defendants have satisfied the onus only to the extent that the claim for relief by way of judicial review is struck out and the Minister of National Defence, Major Wolfe-Milner and Chief Warrant Officer Dupuis shall no longer be Defendants. As to the balance of Statement of Claim, which is in negligence, the Plaintiff's case is not an easy one. However there is a chance that the Plaintiff might succeed and thus ought not to be driven from the judgment seat.

     Since success has been divided costs will be in the cause.

    

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

Vancouver, British Columbia

November 22, 1996