Date: 20010220
Docket: T-2470-94
Neutral reference: 2001 FCT 99
BETWEEN:
DANIEL HÉBERT
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion for an order to strike allegations in the statement of claim.
[2] In her motion record the defendant asked the Court to strike paragraphs 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36 and 38 and for adjustments to the amounts of the claim as a consequence of the striking of the said paragraphs.
{3] At the hearing counsel for the defendant clearly mentioned to the Court that following receipt of the plaintiff's reply record pursuant to the motion to strike, he was prepared to admit that his arguments could not meet the burden of proof required to strike a certain number of paragraphs, and without making any admissions whatever, he mentioned to the Court that he maintained his arguments regarding the request to strike paragraph 38 of the statement of claim, but had decided to withdraw the request to strike for the other paragraphs.
[4] The Court notes this admission by counsel for the defendant.
[5] Paragraph 38 of the statement of claim reads as follows:
[TRANSLATION]
The plaintiff is also entitled in fact and in law to claim the sum of $250,000 as exemplary damages for the dismissal procedure affecting him, a procedure which was clearly cavalier, unreasonable and wrongful in the particular circumstances of the instant case.
[6] Counsel for the defendant submitted abundant authority for the proposition that the termination of the employment of a member of the Armed Forces creates no cause of action at civil law for wrongful dismissal.
[7] He referred in particular to Gallant v. The Queen, 91 D.L.R. (3d) 695. The defendant further cited Jones v. Canada et al. (1994), 87 F.T.R. 190.
[8] In Jones, supra, Cullen J. referred to Gallant, supra, in which Marceau J., as he then was, said at 191:
The engagement of an individual as a member of the Armed Forces does not create any contractual obligations on the part of the Crown. Accordingly, a member of the Armed Forces who alleges that he has been wrongfully dismissed is limited to the internal appeals and remedies provided by statute and Regulations, and has no cause of action which can be asserted in the Trial Division of the Federal Court.
[9] However, it is worth noting that para. 38 is worded in a very general way and covers more than just a claim for a sum of money as a direct result of the dismissal.
[10] Counsel for the plaintiff, for his part, also submitted a long line of authority to the Court, including Leblanc v. Canada, [1975] D.L.R. 4th 559. I quote:
The plaintiff submits that s. 29 creates an internal grievance procedure for current members of the Armed forces. It is intended to provide an internal method for addressing difficulties between members of the Armed Forces without resorting to the civilian courts. As such, it cannot be interpreted as precluding a civil cause of action for a former member who whishes to seek redress for wrongs done to her during her time in the Armed Forces. For example, if a member of the forces were to be wrongfully dismissed it would not be appropriate for such an action to be brought under the auspices of s. 29. The former member would no longer be covered by s. 29, but they would have a legitimate cause of action in the civilian courts.
[11] I have already mentioned at the hearing my scepticism about this decision, which is contrary to precedent, and which also appears to conclude that a dismissed soldier can no longer expect to benefit from the provisions of s. 29 of the National Defence Act, and consequently could not have the benefit of any internal remedy, merely a civilian remedy. I do not agree.
[12] In any case, counsel for the defendant persuaded the Court that in the circumstances para. 38 should be struck out as written.
[13] However, despite the lengthy period of time since the action was brought, the particular facts of the case and especially the fact that the defence has not yet been filed and a judge to manage the proceeding was recently appointed, it seems prudent to reserve the plaintiff's remedies to amend his statement of claim, if he sees fit.
[14] Consequently, THE COURT
1. ORDERS that para. 38 be struck out;
2. ORDERS that the amount mentioned in para. 39 read $1,061,000 and the amount appearing in the last paragraph of the statement of claim, for which the plaintiff is seeking redress, be amended to read $1,061,000;
3. RESERVES the plaintiff's right to amend his statement of claim;
4. The whole with costs to follow the disposition of the case.
|
Pierre Blais Judge |
OTTAWA, ONTARIO
February 20, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: T-2470-94
STYLE OF CAUSE: Daniel Hébert
v.
Her Majesty the Queen in Right of Canada
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: February 16, 2001
REASONS FOR ORDER AND ORDER BY: BLAIS J.
APPEARANCES:
Mathieu Gagné FOR THE PLAINTIFF
Pierre Bolduc
Vincent Veilleux FOR THE DEFENDANT
SOLICITORS OF RECORD:
Grondin, Poudrier, Bernier FOR THE PLAINTIFF
General partnership
Québec, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario