Date: 19980910
Docket: T-126-98
BETWEEN:
LANCE OLMSTEAD,
Plaintiff,
- and -
ATTORNEY GENERAL OF CANADA,
Defendant,
- and -
CANADIAN HUMAN RIGHTS COMMISSION,
Third Party.
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Plaintiff's motion is principally to strike out a substantial portion of the defence. Relying on Rule 221, the defence, in the Plaintiff's view, discloses no reasonable defence, is immaterial or redundant, may prejudice or delay a fair trial and otherwise is an abuse of process. Further, paragraphs of the defence are said to be res judicata by reason of issue estoppel, being contrary to Canada (Attorney General) v. Martin (1994), 72 F.T.R. 249, affirmed by the Federal Court of Appeal (1997), 211 N.R. 149. While the written motion does not raise the issue of a preliminary determination of a question of law, that was argued by both counsel as an alternative. I turn first to some pertinent background.
BACKGROUND
[2] This matter began as an application for judicial review, but was converted to an action. The statement of claim sets out that the Plaintiff, able and willing in all respects to continue his employment, was forcibly retired in 1995, at age 56, from the Canadian Armed Forces, with the rank of Major. However, in 1994, with knowledge of the pending forced retirement, he filed a complaint with the Canadian Human Rights Commission (the "CHRC"), alleging age discrimination contrary to Section 7 of the Canadian Charter of Rights and Freedoms (the "Charter"). That complaint was held in abeyance pending the outcome of the Martin case.
[3] In Martin v. Department of National Defence (1992), 17 C.H.R.R. D/435, the Canadian Human Rights Tribunal (the "CHRT") found the compulsory retirement age provision, applied by the Canadian Armed Forces, to be a discriminatory practice. To elaborate, before the CHRT the Department of National Defence and the Canadian Armed Forces did not seriously dispute that the provision was discriminatory, but rather sought to justify the policy as a bona fide occupation requirement within Section 15(a) of the Canadian Human Rights Act (the "Human Rights Act"), or as a regulation within 15(b) of the Human Rights Act. The tribunal determined that Section 15(b) did not apply, but that the mandatory retirement policy was in any event not a bona fide occupational requirement pursuant to Section 15(a) of the Human Rights Act. That finding was upheld by both the Trial Division and by the Court of Appeal in Canada v. Martin (supra).
[4] While some of this was taking place the Queen's Regulations and Orders (the "QR & O") were amended on 3 September 1992 with the addition of Article 15.17(10) deeming that Article of the QR & O to be a regulation for the purposes of Section 15(b) of the Human Rights Act. Section 15(b) provides, among other things, that it is not a discriminatory practice if employment is terminated because a person has reached a maximum age under regulations made by the Governor in Council for the purposes of coming within that Section.
[5] This brings us to the decision which the Plaintiff appeals, a 26 September 1997 decision of the CHRC, dismissing Major Olmstead's complaint on the grounds that his employment was properly terminated under the QR & O, by the 3 September 1992 amendment, which brought the termination by reason of age provision within shelter of Section 15(b) of the Human Rights Act. The argument, set out by Major Olmstead in his statement of claim, is that Section 15(b) of the Human Rights Act, both by restricting the protection of the Human Rights Act, on the basis of age and by denying equality before and under the law and the right to equal protection and benefit of the law without discrimination on the basis of age, is contrary to Section 15 of the Charter. In the result Major Olmstead looks for declaratory relief and an order quashing the CHRC's decision to dismiss his complaint.
[6] At this point, before considering the defence and what portions of it, if any, ought to struck out, I will touch upon some of the basic principles of striking out a pleading under what is now Rule 221.
BASIC PRINCIPLES APPLICABLE TO STRIKING OUT A PLEADING
[7] In this instance the Plaintiff has filed a reply to the defence. As a general principle a party cannot move to strike out a pleading once that party has in turn pleaded to it. There are exceptions, including that the general principle does not preclude a motion to strike out for want of a cause of action or, as is the allegation here, want of a reasonable defence: see for example Mayflower Transit Ltd. v. Marine Atlantic Inc. (1990), 29 F.T.R. 30 (T.D.) and Nabisco Brands Ltd. v. Procter & Gamble Co. et al. (1985), 5 C.P.R. (3d) 417 at 418 (F.C.A.). Further, where a defence, or here a reply to the defence, raises the same issues as in the motion to strike out, there is no bar to a motion to strike out under the balance of the heads of Rule 221(1): Ricafort et al. v. Canada (1989), 24 F.T.R. 200 at 202, a decision of Mr. Justice Strayer, as he then was and Montreuil v. The Queen, [1976] 1 F.C. 528 at 529. In the present instance the Plaintiff, in his reply, alleges various paragraphs of the defence, to be tested here under Rule 221, disclose no reasonable defence, are irrelevant, immaterial or redundant and may prejudice or delay a fair trial. Moreover the Plaintiff also goes on to say, in his reply, that paragraphs 11 through 14 and 18 of the defence are res judicata. Thus I may consider all of the impugned paragraphs in the defence as subject to being struck out.
[8] To strike out a pleading is not easy. Here, in the case of an application to strike out portions of a defence, the Plaintiff must show, beyond doubt, that the plea will not succeed. This is particulary so where the exercise is to strike out a pleading under Rule 221(1)(b) through (f), which includes various heads under which the Plaintiff applies in this instance, for a plaintiff must establish that the impugned portions of the defence are "... so clearly immaterial, frivolous, embarrassing or abusive" as to be "... obviously forlorn and futile": Burnaby Machine & Mill Equipment Ltd. v. Berglund Industrial Supply Co. Ltd. et al. (1982), 64 C.P.R. (2d) 206 at 210 (F.C.T.D.). If the plea is not forlorn and futile, but rather one which has some chance of success, however slight, the motion to strike out fails. I would add as a further general principle, that a mere surplus statement, from which no prejudice flows, ought not to be struck out: Pater International Automotive Franchising Inc. v. Mister Mechanic Inc. et al. (1990), 28 C.P.R. (3d) 308 at 313 (F.C.T.D.).
CONSIDERATION
[9] Initially paragraph 3, 7 and 8 of the defence were among those impugned by the Plaintiff. At the hearing of the motion counsel for the Plaintiff advised that those paragraphs, in that they might be characterized as factual background, were no longer at issue. I will now touch on the various paragraphs and groups of paragraphs which the Plaintiff desires to have struck out.
Paragraph 5: Basis for Retirement
[10] Paragraph 5 of the defence sets out the QR & O as governing the retirement age of officers. While a general response it is also a particular response to paragraphs 5, 7 and 8 of the statement of claim. Those paragraphs set out some particulars of Major Olmstead's retirement and his ability and willingness to continue his career. While paragraph 5 of the defence refers to the QR & O, which are not directly at issue here, the paragraph does provide some general background. It is not objectionable or prejudicial, but at worst mere surplus. It will remain.
Paragraph 6: Denial of Charter Infringement
[11] The thrust of this paragraph of the defence is that the Plaintiff's Charter rights and freedoms have not been infringed by the operation of the QR & O, although the Defendant does go on to say "or otherwise". The reference to the QR & O goes beyond mere surplus, for it is not the QR & O which the Plaintiff attacks as infringing his Charter rights. The reference in paragraph 6 to the QR & O is struck out.
Paragraphs 9 - 18: The Relevance of the QR & O and Military Structural Requirements
[12] Paragraphs 9 through 18 of the defence contain a justification of a need, in QR & O, of a mandatory retirement policy and set out the structure which the Defendant submits is required by the military. Counsel for the Plaintiff submits that the Defendant ought not to be allowed to complicate a trial which is not about the QR & O, or the structure of the military, but rather about the constitutionality of Section 15(b) of the Human Rights Act.
[13] The Defendant's argument, to justify an excursion into the QR & O, which are not under direct attack, is that the applicability of Section 1 of the Charter comes into play, for Charter rights and freedoms are subject to "... such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." (Section 1 of the Charter). This line of argument is thus to the effect that Section 15(b) of the Human Rights Act does not, in itself, either create a mandatory retirement age or target any particular group, but rather the focus is on the nature of military service, a service under a specific statutory regime. Thus the expansion by the Defendant into the QR & O and military life in general. Now the Plaintiff would like to avoid this broadening of the issue, but the Plaintiff himself, by raising the issue of Section 1 of the Charter and by denying it as a justification of Section 15(b) of the Human Rights Act, has opened the door, to a degree, to some of the Defendant's pleas in paragraphs 9 through 18 of the defence. Paragraph 17 of the defence, which does not necessarily follow from paragraphs 9 through 16 of the defence, is a response to paragraph 23 of the statement of claim in which the Plaintiff submits that Section 15(b) of the Human Rights Act is not a reasonable limit justified in a free and democratic society as per Section 1 of the Charter.
[14] I am not prepared to find that what the Defendant has to say, in paragraphs 9 through 14, 17 and 18 are beyond doubt passages which will not succeed or are so clearly immaterial, frivolous or abusive as to be obviously forlorn and futile. However in this portion of the defence there are two paragraphs which are not relevant, paragraph 15 which purports to compare retirement ages in other western armed forces and paragraph 16, in which the Defendant submits that members of the military are able to retire at younger ages with financial security. These two paragraphs both disclose no reasonable defence and will delay the trial, abusing the process of the Court. They are struck out. Certainly what the Defendant has to say in paragraphs 9 through 14, 17 and 18 may make the trial longer, but not through abuse. The matter does not end here, for the Plaintiff submits that paragraphs 9 through 14 (and also paragraphs 15 and 16) ought to be struck out as res judicata, being contrary to the decision in Martin.
Res Judicata
[15] The Federal Court of Appeal pointed out in Canada v. Chung, [1993] 2 F.C. 42 at 57, that the doctrine known as res judicata, also called per rem judicatum, comes in two different forms. The first is action estoppel and the second, which the Plaintiff says is applicable here, is issue estoppel.
[16] The test for issue estoppel is clearly set out in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 at 935:
| "The requirements of issue estoppel still remain (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies." |
This definition was approved by the Supreme Court of Canada in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 at 254 and subsequently referred to as the requirements for issue estoppel in Canada v. Chung (supra at p. 57).
[17] As a gloss on the first requirement, that the same issue be decide in both actions, Mr. Justice Dickson pointed out in Angle that estoppel must be based upon a question fundamental to the decision in the earlier proceeding:
| "It will not suffice if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgment ... The question out of which the estoppel is said to arise must have been 'fundamental to the decision arrived at' in the earlier proceedings:...." (page 255) |
This is perhaps not as straight forward as it may seem to distinguish matters fundamental to the earlier decision or which are necessarily involved in its legal justification or foundation, on the one hand, from matters raised and decided in the circumstances of the case, but which are not essential foundation or groundwork of the judgment on the other hand. I will return to this, shortly, by way of consideration of what the Martin decision determined. However, I will first touch on the result of issue estoppel in the present proceedings.
[18] The result of the finding of issue estoppel leads to the conclusion that what has occurred is an abuse of process: see for example Hunter v. Chief Constable of the West Midlands Police, [1982] A.C. 529 at 530 (the headnote) and at 541-542.
[19] In my view, Martin, which was determined upon facts which occurred before the amendment to the QR & O purported to bring the QR & O retirement provision within the protection of Section 15(b) of the Human Rights Act, decided whether the retirement provision at issue came within Section 15(a) of the Human Rights Act as a bona fide occupational requirement.
[20] While the Plaintiff would like to characterize the issues raised by the Crown's defence as an attempt to reargue the Martin case and as giving rise to res judicata, that is not the situation. Merely because some or even much of the same evidence may well have bearing does not mean an automatic issue estoppel. That some matters may appear to have been decided in the Martin litigation is not now relevant for, to the extent they may touch upon Section 15(b) of the Human Rights Act, they are not essential to the foundation or groundwork of the decisions in Martin. Having reached this conclusion there is no need to consider the balance of the requirements for issue estoppel, however I would note my doubt that the parties to the present litigation are in both instances privies of the parties to the Martin proceeding, and here I would refer to a discussion on privies in Kimberly-Clark Canada Inc v. Canada (1998), 145 F.T.R. 265 at 273 and following.
[21] Before turning to consideration of whether this litigation might be determined in a summary way as question of law, I would also note that what remains of the Crown's defence are the particulars necessary to properly examine the constitutionality of Section 15(b) of the Human Rights Act in the context of the QR & O, for a constitutional question ought not to be decided in a vacuum.
Preliminary Determination of a Question of Law
[22] Major Olmstead submits that the cost of a full-fledged hearing process, such as occurred in Martin, will be an unacceptable burden on his finances. Keeping in mind that it was Major Olmstead who successfully applied to convert a relatively inexpensive judicial review application into a more expensive action, it is still an unfortunate fact that litigation is not only a luxury, even for a successful litigant, but also a consumer of time that is valuable to all concerned. Thus Rule 220 provides for the determination of a preliminary, relevant and useful question of law.
[23] Generally a preliminary determination of law can be made only in an instance in which the essential facts are admitted: Stiksma v. Canada et al. (1988), 19 F.T.R. 94 at 96 (T.D.). Here lies the problem in the present instance. Certainly an agreed statement of facts is not always necessary. The Court may accept facts to which all of the parties have acquiesced or may draw conclusions from the pleadings of the party who is a defendant to the motion for a summary determination: see for example Berneche et al. v. Canada (1991), 133 N.R. 232 at 235-236 (F.C.A.). However, issues as to constitutionality ought not to be considered and determined either in a factual vacuum or in the abstract but must be weighed in the relevant context: see for example McKinney v. Board of Governors of the University of Guelph (1991), 76 D.L.R. (4th) 545 at 648 and 661 (S.C.C.). By the same token such issues ought not to be dealt with as a pure questions of law when many facts are in dispute, not only in themselves, but as to their relevance. Here the Defendant refers to a dozen specific areas on which he will call factual evidence in order to deal with the issue of the constitutionality of Section 15(b) of the Human Rights Act. The Plaintiff says the issues have been dealt with by the Courts in Martin and therefore are not relevant. As I have already pointed out, Martin does not give rise to an estoppel. It may well be that a Trial Judge will find the evidence the Defendant wishes to call both relevant and admissible.
[24] This dispute is, unfortunately, not one amenable to summary determination as a question of law unless the parties are able to either produce a statement of agreed facts or at least come much closer in their views as to what conclusions the Court ought to draw, as to facts, from the pleadings.
CONCLUSION
[25] It is unfortunate that the issue, whether Section 15(b) of the Human Rights Act is contrary to Section 15 of the Charter, and if so whether it is justified under Section 1 of the Charter, cannot be simplified by reducing the length and content of the pleadings. However, it is a complex issue which ought to be considered in an appropriate context, a context replete with sufficient factual material. Thus, while I have struck out a small portion of the defence, pursuant to Rule 221, most of what the Defendant has to say in the defence may well be relevant.
[26] Nor is issue estoppel of any assistance to the Plaintiff for any bearing the Martin decisions have on the present action, by way of matters raised and decided, those matters were not an essential foundation of the decisions in Martin which dealt not with Section 15(b) of the Human Rights Act, which is at issue here, but rather with Section 15(a) of the Human Rights Act.
[27] Again, it is unfortunate, given the potential cost of this litigation, that it cannot be resolved through Rule 220, by determination of a preliminary question of law. However, the parties are too far apart in their view of relevant facts. Nor would it be possible for a Court to draw substantial conclusions from the pleadings, particularly from the pleadings of the Defendant. While one may be sympathetic toward Major Olmstead's situation, that of limiting financial resources, one must remember, as I have pointed out, that it was Major Olmstead who applied and succeeded in having this matter converted from a relatively speedy judicial review process to a full-blown action.
[28] The reference to the QR & O in paragraph 6 and all of paragraphs 15 and 16 of the Defence are struck out. There shall, at this point, be no Rule 220 preliminary determination of a question of law. Costs shall be in the cause. The result of this well argued motion is that the Plaintiff will have to deal not only with the law at trial, but also with the factually complex defence.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
September 10, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-126-98
STYLE OF CAUSE: Lance Olmstead
v.
Attorney General of Canada and others
PLACE OF HEARING: Vancouver, BC
| DATE OF HEARING: June 22, 1998 |
REASONS FOR ORDER OF MR. JOHN HARGRAVE, PROTHONOTARY
dated September 10, 1998
APPEARANCES:
| Mr. Lawrence Armstrong for the Applicant |
| Armstrong Nikolich |
| Victoria, BC |
| Ms. Darlene Patrick for the Respondent |
| Department of Justice |
SOLICITORS OF RECORD:
| Mr. Lawrence Armstrong for the Applicant |
| Mr. Morris Rosenberg for the Respondent |
Deputy Attorney General
of Canada