Date: 20010921
Docket: T-294-00
Neutral citation: 2001 FCT 1038
BETWEEN:
PETER DUPLESSIS
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
A. INTRODUCTION
[1] This is an appeal by Her Majesty the Queen in right of Canada (the "Crown") from the November 17, 2000 decision of Prothonotary Aronovitch (the "Prothonotary") who dismissed the Crown's motion to strike out, pursuant to Rule 221 of the Federal Court Rules, 1998, (the "Rules") the defendant's amended statement of claim issued February 17, 2000.
[2] The parties are in agreement on the standard of review to be applied in reviewing the Prothonotary's decision. Since the question she decided, namely, whether to strike out the amended statement of claim or not, was determinative of the action, the appeal before me proceeds de novo and I must exercise my own discretion.
[3] Furthermore, the parties are not apart on the applicable test under Rule 221(1)(a), the ground of non-existence of a reasonable cause of action. That test is whether it is plain and obvious the case is beyond doubt, without any chance of success. In respect of the other grounds provided for in Rule 221 (immaterial and redundant, scandalous, frivolous or vexatious or otherwise an abuse of the process of the Court), the test is whether the ground is so clearly immaterial, frivolous, embarrassing or abusive that it is obviously forlorn and futile.
[4] Counsel for the plaintiff did raise one matter but did not press it in argument. The issue is whether the Prothonotary erred in accepting affidavit evidence consisting of: (1) an October 15, 1998 decision by the Department of Veterans Affairs awarding the defendant a disability pension on account of post-traumatic stress disorder related to the performance of peacekeeping duties with the Canadian Armed Forces, and (2) a December 6, 1999 decision by the Veterans Review and Appeal Board increasing that pension to 45%. Counsel for the plaintiff asked me not to base my decision on this point. As a result, I consider this ground to have been abandoned.
[5] In a related motion pursuant to Rule 384, the parties agreed that, should I dismiss this appeal, the proceeding should be a specially managed proceeding and the case management judge, appointed by the Associate Chief Justice, should set an appropriate schedule order after the Crown's statement of defence has been filed.
[6] Counsel for the Crown limited his grounds of appeal to one point. He argued the Prothonotary erred in finding it was not plain and obvious that the plaintiff's claim was statute-barred by both section 9 of the Crown Liability and Proceedings Act and section 111 of the Pension Act. In particular, he submitted the Prothonotary erred in finding that: (a) the plaintiff's disability pension was not paid in respect of the injury, damage or loss in respect of which the plaintiff based his action against the Crown; and
(b) the plaintiff's action under sections 7 and 15 of the Charter were not statute-barred by those same provisions.
[7] Section 111 of the Pension Act, c. P-6 is headed "No action or proceeding against the Crown where death or disability pensionable" and reads:
| 111. No action or other proceeding lies against Her Majesty or against any officer, servant or agent of Her Majesty in respect of any injury or disease or aggravation thereof resulting in disability or death in any case where a pension is or may be awarded under this Act or any other Act in respect of the disability or death. R.S., c. 22 (2nd Supp.), s. 28. |
111. Nulle action ou autre procédure n'est recevable contre Sa Majesté ni contre un fonctionnaire, préposé ou mandataire de Sa Majesté relativement à une blessure ou une maladie ou à son aggravation ayant entraîné une invalidité ou le décès dans tous cas où une pension est ou eut être accordée en vertu de la présente loi ou de toute autre loi, relativement à cette invalidité ou à ce décès. |
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[8] Section 9 of the Crown Liability and Proceedings Act, c. C-50, is headed "No proceedings lie where pension payable" and reads:
| 9. No proceedings lie 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. |
9. Ni l'État ni ses préposés ne sont susceptibles de poursuites pour toute perte -- notamment décès, blessures ou dommages -- ouvrant droit au 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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B. THE AMENDED STATEMENT OF CLAIM
[9] I summarize the main elements of the amended statement of claim. In doing so, I have had substantial regard to the wording found in the Prothonotary's decision.
[10] Sergeant Duplessis served in the Canadian military between October 27, 1977 and October 27, 1997, the date of his release. Prior to his release, he had served in peacekeeping missions in Croatia and Bosnia in 1992, where he experienced traumatic conditions. Prior to that, Sergeant Duplessis served on the Golan Heights.
[11] After his return to Canada, on or about April 1993, Sergeant Duplessis suffered from a variety of stress-related symptoms, including a feeling of isolation, anxiety, lack of concentration, aggressiveness, nightmares, insomnia and physical symptoms including loss of appetite. Some of these symptoms were recorded in part in his 1993-94 performance evaluation reports. He repeatedly requested assistance from his superiors and medical personnel, but received no debriefing, counselling, treatment or assistance.
[12] In 1995 to 1996, Sergeant Duplessis' health continued to deteriorate and he continued to seek medical counselling and support. Rather than resulting in support, his requests apparently created an inhospitable attitude amongst his superiors who considered him to be a troublemaker. Sergeant Duplessis claims that the response of his superiors was discriminatory, based on his Afro-Canadian descent and on the psychological nature of his injuries. Eventually, through his own efforts, Sergeant Duplessis managed to receive some treatment through a civilian social worker hired by the Armed Forces. He was then referred to a military psychiatrist. However, his treatment was considered unsuccessful and his superiors discouraged further treatment.
[13] Sergeant Duplessis then decided to circumvent his immediate superiors, in effect, breaking the chain of command. He sought assistance directly through the base commander, who referred him to a civilian psychologist in July 1997 and then a civilian doctor in September 1997.
[14] Sergeant Duplessis claims that in February 1997, his duties and responsibilities were unilaterally altered. He was demoted and all of his previous supervisory responsibilities removed. The decision was made on the determination he was disabled and unfit to perform his duties. Sergeant Duplessis claims the decision was made in bad faith and states the reasons given for his release were a pretext to get rid of him. He alleges he was improperly evaluated and ultimately improperly scheduled for release by the Armed Forces.
[15] He went on sick leave until his discharge in October 1997. During his sick leave, Sergeant Duplessis alleges he received no financial, medical counselling or assistance from his superior officers or his Armed Forces medical personnel. He was eventually diagnosed with post-traumatic stress disorder ("PTSD") and received a pension entitlement.
[16] Sergeant Duplessis seeks damages against the Crown in the amount of $500,000 for:
(a) negligence in failing to fulfill duties competently;
(b) negligence in failing to perform all statutory duties;
(c) breach of statutory duties;
(d) breach of fiduciary duty;
(e) breach of section 7 of the Charter;
(f) breach of section 15 of the Charter.
ANALYSIS AND CONCLUSIONS
[17] Crown counsel focusses on the words "no action or other proceeding lies against Her Majesty ... in respect of any injury or disease or aggravation thereof resulting in disability... in any case where a pension is ... awarded under this Act or any other Act in respect of the disability" found in section 111 of the Pension Act. Insofar as section 9 of the Crown Liability Act, he focusses on the same words "no proceedings lie ... in respect of a claim if a pension ... has been paid ... in respect of the death, injury, damage or loss in respect of which the claim is made".
[18] He cites several cases where the words "in respect of" have been given a very broad meaning. He then asserts that all of the allegations in the plaintiff's amended statement of claim are related to the PTSD injury he incurred during his peacekeeping activities in Bosnia and Croatia, injuries which were aggravated on his return to Canada by the alleged manner of treatment or non-treatment he received from the Armed Forces for which he is being compensated through a pension.
[19] I am of the view the Crown has not cleared the high hurdle established in the decided cases that the plaintiff's claim is doomed to failure, and has no chance of success. I make this determination for the following reasons.
[20] First, arguably, as counsel for the plaintiff put it, on its face, the plaintiff's claim is not for compensation on account of his PTSD injury or any aggravation or continuation of the symptoms associated with it upon his return to Canada. It is for other harms suffered resulting in damages which have nothing to do with the pension he is receiving and arises out of the negligence of the Crown's servants in failing to address his condition; it is for breach of fiduciary and other statutory duties in failing to provide assistance; it is for racial discrimination and discrimination on account of mental disability under the Charter and it is for bad faith in his discharge because his illness was a pretext. These are separate and distinct unrelated claims to his PTSD.
[21] Prothonotary Aronovitch came to the same conclusion and I think she was right. This is the view also taken by Justice Rouleau in Schlueter v. Canada (Royal Canadian Mounted Police), [2001] F.C.T. 748, where, in commenting on the Prothonotary's decision in this case at paragraph 21, he said:
It is obvious that the Prothonotary was concerned in Duplessis, supra, that the claim may be distinguishable from that for which pension benefits were being paid.
[22] Second, section 111 of the Pension Act and section 9 of the Crown Liability and Proceedings Act, require a factual foundation and a nexus between the pension paid and the injury or its aggravation. One purpose of both of these provisions is to prevent double recovery. I agree with counsel for the plaintiff that this factual foundation is missing and the nexus not established which would normally be established in the Crown's statement of defence. (Compare Merineau v. Canada, [1983] 2 S.C.R. 362 and Berneche v. Canada, [1991] 3 F.C. 383 (F.C.A.) with Langille v. Canada (Minister of Agriculture), [1992] 2 F.C. 208 (F.C.A.).
[23] Third, how far statutes such as the Pension Act or the Crown Liability and Proceedings Act can operate to blunt section 24 Charter claims is not the subject of settled law. (Contrast St-Onge v. Canada, [1999] F.C.J. No. 1842 (F.C.T.D.) and Prete v. Ontario (Attorney General) (1993], 110 D.L.R. (4th) 94 (Ont. C.A.).
DISPOSITION
[24] For the reasons given, this appeal from Prothonotary Aronovitch's November 17, 2000 decision is dismissed with costs in any event of the cause. The Crown is to file its defence within 30 days of this decision. This proceeding shall be managed as a specially managed proceeding.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
SEPTEMBER 21, 2001