Vancouver, British Columbia, February 27, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
and
REASONS FOR ORDER AND ORDER
[1] The defendant moved to strike Mr. Sandiford’s statement of claim. Prothonotary Lafrenière granted the motion and struck the action without leave to amend. Mr. Sandiford appeals Prothonotary Lafrenière’s order and alleges that the prothonotary erred in law and in fact in coming to the conclusion that Mr. Sandiford failed to exhaust the statutory grievance process available to him. For the reasons that follow, I conclude that Prothonotary Lafrenière did not err as alleged. Mr. Sandiford’s appeal will be dismissed.
I. Background
[2] Succinctly stated, the pertinent facts are that Mr. Sandiford is an officer in the Canadian Forces. On July 26, 2005, he submitted a grievance under the National Defence Act, R.S.C. 1985, c. N-5 (the Act), to his Officer in Charge (OIC) alleging that he had been improperly excluded from consideration for certain positions in the Canadian Forces in contravention of the rules established in the Administrative Orders. He contended that he was a victim of discrimination and breaches of fiduciary and statutory duties.
[3] Mr. Sandiford filed his grievance in accordance with the Queen’s Regulations and Orders, the Canadian Forces Grievance Manual and the Canadian Forces Administrative Orders. Section 29 of the Act and its related rules establish a timetable for responding to a grievance. The Canadian Forces Grievance Manual sets out a time line for the processing of a grievance.
[4] After making several inquiries as to the status of his grievance, Mr. Sandiford was advised on September 6, 2005, by the OIC of the base orderly room, that she had no record of the grievance being filed. On September 23, 2005, following further inquiries and on the request of his OIC, Mr. Sandiford re-submitted his documents, minus attachments, to the OIC. On October 11, 2005, Mr. Sandiford was informed that his grievance was delivered.
[5] In the meantime, having received no response to his grievance, Mr. Sandiford filed his statement of claim in the Federal Court on September 25, 2005. On October 24, 2005, the grievance was placed in abeyance pending resolution of Mr Sandiford’s action.
[6] On October 25, 2005, Mr. Sandiford filed a second amended statement of claim seeking damages for breach of statutory duty, breach of fiduciary duty, breach of constitutional rights and negligence. He also requests an order that he be transferred to one of two specified positions within the Canadian Forces.
II. The Decision
[7] The crux of Prothonotary Lafrenière’s decision is contained in the following paragraphs of his order:
The allegations and claims in the Statement of Claim, taken as a whole, relate to the Plaintiff's issues of career progression and regulation of his military life within the Canadian Armed Forces. The Plaintiff had recourse to the National Defence Grievance process provided by section 29 of the ND Act and Queens Regulations and Orders, chapter 7 to address his complaints, and in fact exercised that right. The Plaintiff acknowledges that the grievance has not been finally determined by the final authority as prescribed by the National Defence Act and applicable Regulations.
This Court has consistently held that the only avenue of redress available for military personnel to challenge any "decision, act or omission in the administration of the affairs of the Canadian Forces", as broadly worded in section 29 of the ND Act, is the statutory grievance procedure prescribed by that Act – a procedure described as exhaustive in nature. The Plaintiff's complaints regarding negligence and mishandling of his grievance could also have been the subject of a separate grievance, failing which relief could have been requested pursuant to s. 18.1 of the Federal Courts Act.
[8] The prothonotary went on to address the requisite threshold for striking an action and determined that this matter either “constitutes an abuse of process by seeking to circumvent the exhaustive statutory scheme available under the National Defence Act, or an improper collateral attack of an administrative decision, which can only be accomplished by way of an application for judicial review.” In this respect, he referred to the Federal Court of Appeal decision in Grenier v. Canada, [2006] 2 F.C.R. 287 (Grenier).
III. Issues
[9] There are two issues that arise:
(1) whether the “new evidence” in the form of Mr. Sandiford’s affidavit and the attachments exhibited to it are admissible on this appeal; and
(2) whether the prothonotary erred in striking the statement of claim without leave to amend.
IV. Analysis
[10] Before turning to the issues, it should be stated that, at the direction of Mr. Justice Lemieux, Mr. Sandiford’s appeal proceeded after that in Graham v. Her Majesty the Queen, 2007 FC 210, to enable Mr. Sandiford, a self-represented litigant, to have the benefit of hearing the arguments in that matter (Ms. Graham was represented by counsel) before arguing his appeal. Justice Lemieux’s direction was followed.
[11] Second, Mr. Sandiford asserted that he had not been served with the respondent’s motion record within the time prescribed by the Federal Courts Rules, SOR/98-106 (the Rules). He received the record two hours after the time for service expired. The defendant, in reliance on a message from its courier service that delivery had been effected, had filed a certificate of service in relation to the motion record. Mr. Sandiford denied having received the motion record at that time. Rather, he stated that he received the defendant’s motion record concurrent with his receipt of the defendant’s book of authorities. Mr. Sandiford took the position that he was entitled to the benefit of the Rules and, if the shoe were on the other foot, the defendant would insist on strict compliance. He maintained that he was prepared to proceed with the appeal, but he was not prepared to respond to any of the defendant’s arguments, having not received them within the prescribed time frame.
[12] In an effort to ensure that a resolution of the matter was available in a timely manner (the appeal initially had been set for hearing on January 15, 2007) and, at the same time, ensure that Mr. Sandiford was afforded an opportunity to fully argue his case, I proposed that he be granted five days within which to file a written response to the defendant’s submissions rather than be required to respond orally at general sittings. Mr. Sandiford indicated that he regarded the proposal as one that was fair to him. Accordingly, Mr. Sandiford was directed to serve and file his written response to the defendant’s position not later than 2:00 p.m. on Friday, February 23, 2007. His submissions were received prior to the directed deadline.
A. New Evidence
[13] Mr. Sandiford filed his motion record in which he included a fresh affidavit with several attachments exhibited thereto. He claims that it was impossible to have relied on the material earlier because he was only aware of its existence three months after the hearing of the motion to strike. The defendant objects to the affidavit on the basis that it is argumentative, was not before the prothonotary and is not relevant in any event.
[14] The general rule is that appeals from orders of prothonotaries are to be decided on the basis of the material that was before the prothonotary. In James River Corp. of Virginia v. Hallmark Cards, Inc. (1997), 126 F.T.R. 1 (F.C.T.D.), Madam Justice Reed declined to accept new evidence that had not been before the prothonotary and stated at paragraphs 31 and 32:
[31] As I understand counsel's explanation of the Associate Senior Prothonotary's decision, it is that the order requested was refused because there was no proper evidence before the Associate Senior Prothonotary demonstrating that the United States proceeding existed and was parallel to the present proceeding, nor was there evidence demonstrating that the documentation that was sought was relevant to the present proceeding. It was not argued that this decision by the Associate Senior Prothonotary was in error. Counsel for the plaintiff sought to file with the Court an affidavit to supply the missing evidence. He took the position that an appeal of a prothonotary's decision to a judge is a proceeding de novo and, therefore, I was entitled to accept this evidence and render the decision the Associate Senior Prothonotary would have made had he had that evidence before him.
[32] I do not interpret the role of a judge on an appeal of a prothonotary's order in that way. Whatever may be the difference, if any, between the Chief Justice's description on page 454 of Canada v. Aqua-Gem, supra, and that of the majority of the Court at page 463, the latter governs. It clearly contemplates that the judge will exercise his or her discretion de novo, on the material that was before the prothonotary, and not engage in a hearing de novo based on new materials.
[15] Mr Justice Nadon, then of the Federal Court Trial Division, reached a similar conclusion in Symbol Yachts Ltd. v. Pearson, [1996] 2 F.C. 391 (T.D.). Justice Nadon held that:
[20] The present matter is an appeal from the Prothonotary's decision pursuant to subsection 336(5) of the Rules. For me to disturb the Prothonotary's order, I must be satisfied that his order was "clearly wrong" or that the order raises a question "vital to the final issue of the case". In Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, Mr. Justice MacGuigan of the Federal Court of Appeal explained as follows the applicable standard of review where appeals are taken from discretionary orders of a prothonotary. At page 463, Mr. Justice MacGuigan stated that:
… discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final issue of the case.
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
[21] In the present instance, there is no doubt in my mind that the Prothonotary's order raises a question vital to the final issue of the case since the effect of the Prothonotary's order is to terminate the plaintiffs' action. However, I can only examine the Prothonotary's order in the light of the evidence which was before him when he made his order. Consequently, I cannot, and so advised the parties at the hearing, consider the affidavits which the plaintiffs seek to introduce into the record. I do not know why these affidavits were not filed by the plaintiffs in support of their September 22, 1995 application but, in my view, that evidence, if available, should have been placed before the Prothonotary.
[22] This is an appeal of the Prothonotary's decision and it is now too late to present evidence which should have been made earlier. In my view, the purpose of these new affidavits is to correct the shortcomings of the evidence submitted to the Prothonotary. The facts sworn to, for example in the Beesley affidavit, are facts which could have been put before the Prothonotary but were not. The affidavit covers the time period from the initiation of the litigation in 1988 to October 30, 1995.
[23] It was for these reasons that I informed the parties during the hearing that I would not allow the plaintiffs to introduce into the record supplementary affidavits.
See also: Canada v. Mid-Atlantic Minerals Inc., [2003] 1 F.C. 168 (F.C.); Canada (Minister of National Revenue – M.N.R.) v. Marrazza (2004), 256 F.T.R. 1 (F.C.); Rhéaume v. Canada, 2003 FC 1405, [2003] F.C.J. 1798; Odessa Partnership v. Canada (Department of National Revenue), 2003 FC 1420, [2003] F.C.J. 1814.
[16] Exceptionally, new evidence may be admissible in circumstances where: it could not have been made available earlier; it will serve the interests of justice; it will assist the court; and it will not seriously prejudice the other side: Mazhero v. Canada (Industrial Relations Board) (2002), 292 N.R. 187 (F.C.A.). None of the criteria have been met in this case.
[17] The new evidence that Mr. Sandiford seeks to admit, and which he says required “extraordinary means” to obtain, comprises some 215 pages. I have examined all of it. It consists of various orders, directives, bulletins and policy statements from various departments within National Defence covering areas such as use of electronic mail, access to information and privacy requests, acceptable use of internet and the like. It also contains National Defence website postings regarding records management, conduct of correspondence, security, damage assessment and so on. The dates of these materials range from October 12, 1999, through to September 26, 2006.
[18] There are email exchanges between Mr. Sandiford and various officers. One appears to relate to the grievance of another individual. There is also a response to Mr. Sandiford’s request for status reports as well as expressions of confusion and misunderstanding surrounding Mr. Sandiford’s request for information.
[19] Additionally, there is correspondence dated May 3, 2006, from National Defence Headquarters (NDHQ) Acting Director of Access to Information and Privacy informing Mr. Sandiford that all available records “have been located and processed for release to [Mr. Sandiford]” and advising him of his right to request correction or complain to the Privacy Commissioner. There is correspondence from the Office of the Privacy Commissioner of Canada, dated November 2, 2006, advising Mr. Sandiford that because National Defence failed to satisfy the legislative requirements for responding to his Privacy Act request, his complaint was determined to be well-founded. It is noteworthy that the investigation report states that 272 days elapsed from the date the request was received until the matter was concluded. The legislation prescribes 30 days for government institutions to respond although an extension of 30 days is available in specified circumstances. The investigator notes that two separate requests for clarification of Mr. Sandiford’s request were required. The file was on hold for 253 of the total 272 days because of the clarification requests.
[20] None of the evidence is probative to the issue before me. Mr. Sandiford misconstrues the purpose of both the defendant’s motion to strike and his appeal of the prothonotary’s order. This is not the time for Mr. Sandiford to argue the merits of his complaint about the rules allegedly having been breached by certain unnamed individuals in the Canadian Forces. Rather, it is a time to determine the forum in which the merits of his complaint should be determined, i.e. through the internal grievance process or through the process of the court.
[21] The “new evidence” contained in Mr. Sandiford’s affidavit and its exhibits is not probative in relation to the question for determination. Since it is not probative, it cannot affect the outcome of the appeal. Further, with the exception of the correspondence relating to the access to information requests, nearly all of the remaining documentation was available to Mr Sandiford prior to the hearing before the prothonotary. The website entries for 2006 were updated entries. In my view, it is inconceivable that Mr. Sandiford takes the position that the Queen’s Orders and Regulations were obtainable only by “extraordinary means”.
[22] Mr. Sandiford’s affidavit and its exhibits are not admissible on this hearing.
B. The Merits
[23] It is common ground that Prothonotary Lefrenière’s decision is vital to the final issue and, as a result, I must approach the matter de novo: Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.); Merck & Co., Inc. v. Apotex Inc., [2004] 2 F.C.R. 459 (C.A.).
[24] Mr. Sandiford asserts that the prothonotary erred because the defendant did not comply with the grievance process. The reasons for the non-compliance are “many, varied and unlawful”. He claims that, within the context of this case, the grievance process does not provide a comprehensive statutory grievance mechanism and the prothonotary erred, both in law and fact, when he came to the conclusion that Mr. Sandiford failed to exhaust the statutory grievance process. He says “to that end, judicial review of any unlawful decision would not be possible”. According to Mr. Sandiford, the only process “best suited to dealing with the defendant is through normal litigation through the courts and all that entails.” He says that the defendant has unlawfully withheld documents thereby acting contrary to the principles of fairness and natural justice. These transgressions amount to violations of the law that have “criminal import”.
[25] In sum, Mr. Sandiford claims that his action concerns the merits of the grievance scheme itself and that the defendant’s failure to follow the law is the only issue. He contends that his action should continue because this is a “non-garden variety matter” that has elements of illegality”.
[26] As a basic proposition, when Parliament creates statutory remedies and institutions designed specifically to provide redress to persons aggrieved, the court should not lightly intervene before those statutory remedies have been exhausted. Failure to pursue the available procedures does not render the remedy inadequate: Lazar v. Canada (Attorney General) (1999), 168 F.T.R. 11 (T.D.) aff’d. (2001), 271 N.R. 10 (F.C.A.).
[27] Section 29 of the National Defence Act provides:
The detailed process is set out in Chapter 7 of the Queen’s Regulations and Orders, which is entitled “Grievances”.
[28] The jurisprudence holds that the resolution mechanism existing through the grievance procedure in the National Defence Act constitutes an adequate alternative remedy that must be exhausted before an individual can turn to the court for redress: Anderson v. Canada (Canadian Armed Forces), [1997] 1 F.C. 273 (F.C.A.); Gallant v. Canada (1978), 91 D.L.R. (3d) 695 (F.C.T.D.); Jones v. Canada (1994), 87 F.T.R. 190 (T.D.); Pilon v. Canada (1996) 119 F.T.R. 269 (T.D.); Villeneuve v. Canada (1997), 130 F.T.R. 134 (T.D.); Haswell v. Canada (Attorney General (1998), O.T.C. 143 (Gen. Div.) aff’d. (1998), 116 O.A.C. 395 (C.A.).
[29] This approach is consistent with the reasoning of the Supreme Court of Canada in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929. There, the court determined that where the subject matter of a dispute is one that is covered by a statutory scheme or collective agreement, the court should, as a general rule, defer jurisdiction to the mechanisms set out in the applicable scheme (paras. 50-58 and 67). More recently, in Vaughn v. Canada, [2005] 1 S.C.R. 146, the Supreme Court emphasized that regard must be had to the facts giving rise to the dispute rather than the legal characterization of the wrong to determine whether there is an adequate alternative remedy (para.11). In all but the most unusual circumstances, the court should decline jurisdiction and defer to statutory grievance schemes (para. 2).
[30] Mr. Sandiford’s complaints relate directly to his placement within the Canadian Forces. His quarrel is that the rules were not properly followed in determining his placement. That and the fact that the grievance did not strictly follow the prescribed time lines (in part because his grievance could not be located) constitute the crux of the matter. I note that although Mr. Sandiford places great emphasis on the fact that the time limits in the grievance process were not honoured by the Canadian Forces, he made no request under article 7.07(2) of the Queen’s Orders and Regulations to request that the initial authority submit the grievance to the Chief of Defence Staff for consideration and determination, as was his right.
[31] The genesis of Mr. Sandiford’s complaint is the failure of his superiors to place him where he wished to be placed. That is a matter that clearly falls within the ambit of the grievance procedure. Mr. Sandiford’s recourse is to pursue his grievance. He has an adequate alternative remedy. That remedy must be exhausted before he turns to the court.
[32] As for Mr. Sandiford’s submission that the grievance process takes too long, on the record before me, that is simply not the case. The grievance was filed on July 26, 2005. As I have just noted, Mr. Sandiford could have utilized article 7.07(2) and did not. As for the delay since October 24, 2005, article 7.16 of the Queen’s Orders and Regulations provides that an initial or final authority in receipt of a grievance submitted by a member shall suspend any action in respect of the grievance if the grievor initiates an action, claim or complaint under an Act of Parliament, other than the National Defence Act, in respect of the matter giving rise to the grievance. Mr. Sandiford knew or ought to have known about this provision. His action was brought pursuant to the provisions of the Federal Courts Act, R.S.C. 1985, c. F-7. Mr. Sandiford is the author of his own misfortune.
[33] Should Mr. Sandiford be dissatisfied with the result of his grievance, he may then seek recourse by way of judicial review. Parliament’s intention in relation to the appropriate process to challenge an administrative decision (by way of judicial review or by an action for damages) was exhaustively examined by the Federal Court of Appeal in Grenier. The issue is discussed at paragraphs 25 through 32 of the court’s reasons and I do not intend to repeat the discussion here. Suffice it to say that, in conclusion, the court commented that “[i]t is especially important not to allow a section 17 proceeding as a mechanism for reviewing the lawfulness of a federal agency’s decision when this indirect challenge to the decision is used to obviate the mandatory provision of subsection 18(3) of the Federal Courts Act”.
[34] To summarize, Mr. Sandiford must exhaust the adequate alternative remedy available to him. If, at the completion of that process, he is dissatisfied with the decision, he may seek judicial review. It is not open to him to circumvent the process mandated by Parliament through initiating an action at this time. Consequently, his action has no chance of success and Prothonotary Lafrenière was quite right to strike it without leave to amend.
[35] Before concluding, I wish to address Mr. Sandiford' reliance on Smith v. Canada (Attorney General) et al. (2006), 300 N.B.R. (2d) 363 (Q.B.T.D.) (Smith), which he urged me to follow. There, Madam Justice Garnett refused to dismiss an action initiated by members of the R.C.M.P. The defendants contended that the court lacked jurisdiction or should decline jurisdiction on grounds that I gather, from the reported decision, are not dissimilar to those advanced before me. For various reasons, I do not find the authority helpful.
[36] First, the nature of the action in Smith is not readily apparent on reading the decision. It seems that the allegations in the statement of claim may have been outside the ambit of the grievance process, but this is speculative on my part. Second and more importantly, it is obvious from the decision that the primary plaintiff in Smith repeatedly utilized the internal process in relation to his complaint. He additionally accessed, or attempted to use alternate dispute resolution and mediation processes. On that basis alone, the case is readily distinguishable from the one at hand. Third, there is nothing before me to indicate, let alone establish, the similarities or dissimilarities between the grievance procedure in Smith and that available to Mr. Sandiford. Although Mr. Sandiford did refer to section 31 of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, which is analogous to section 29 of the National Defence Act, reference to the grievance process of the former is not in the record. Fourth, to apply Smith, I would have to disregard the jurisprudence of the Federal Court and the Federal Court of Appeal. The latter is binding upon me. Finally, I am advised by counsel that the Smith case is scheduled for hearing before the New Brunswick Court of Appeal on February 27, 2007. Accordingly, I refrain from further comment.
[37] For the foregoing reasons, the appeal will be dismissed.
ORDER
THIS COURT ORDERS THAT the appeal is dismissed with costs.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1685-05
STYLE OF CAUSE: CALVIN SANDIFORD v.
HER MAJESTY THE QUEEN
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: February 20, 2007
Further submissions February 23, 2007
REASONS FOR ORDER AND ORDER: LAYDEN-STEVENSON J.
APPEARANCES:
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Mr. Calvin Sandiford
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(self-represented)
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Ms. Valerie Anderson Mr. Ward Bansley
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SOLICITORS OF RECORD:
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n/a
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John H. Sims, Q.C. Deputy Attorney General of Canada
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