Date: 19980901
Docket: T-482-98
BETWEEN:
DANIEL CHRISTOPHER BAST,
Applicant,
- and -
ATTORNEY GENERAL FOR CANADA,
Respondent.
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Applicant, Captain Bast, a pilot in the Canadian Armed Forces, by an originating notice of motion, called a notice of application under the 1998 Rules, seeks to set aside a decision of the Canadian Armed Forces to require him to serve until 1 December 1999, Captain Bast being the subject of a restricted release policy by reason of education and training received in the military.
[2] The Attorney General of Canada, the Respondent, set down a motion to strike out the notice of application as scandalous, frivolous and vexatious, submitting that the Applicant has an adequate alternative remedy which has not been exhausted. That motion was shortly followed by the Applicant's motion requesting a stay or adjournment of the Respondent's motion and an order requiring the Chief of Defence Staff to respond, in writing within thirty days, in order to redress a grievance initiated on 1 May 1998, some ten days after the Attorney General's motion to strike out was filed. I reserved my decision on the Respondent's motion, but by these reasons and an Order of even date have allowed it, striking out the application. I dismissed the Applicant's motion at the time it was made: I also touch on the reasons for dismissing that motion. I now turn to some relevant facts.
BACKGROUND
[3] Captain Bast enrolled in the Canadian Armed Forces by way of the Regular Officer Training Plan. He was thus obliged to serve in the military, after graduation, for five years, that term coming to an end 30 April 1998. At that time he also agreed, subject to meeting selection standards, to be trained in one of the military occupations in the Air Operations Functional Group and in due course was selected for and completed pilot training.
[4] Captain Bast sets out, in an affidavit of 13 March 1998, that subsequently, in November of 1994, the Canadian Armed Forces, without his consent, specified that pilots were to serve five years from the date of achieving that classification and thus his obligatory service would run to 1 December 1999.
[5] Before initiating any grievance procedure Captain Bast made a request, to the Directorate of Military Careers, Ottawa, on 9 January 1998, seeking voluntary release from the Canadian Armed Forces. That request was dealt with by the Directorate of Military Careers, by a message of 18 February 1998:
| "1. RELEASE REQUEST BY CAPT BAST AT REF IS NOT SUPPORTED. MEMBER IS SUBJECT TO RESTRICTED RELEASE UNTIL 1 DEC 1999. |
| 2. EARLIEST DATE CAPT BAST MAY BE RELEASED FROM THE CF IS 2 DEC 1999.". |
It is this 18 February 1998 message from which this 24 March, 1998 application for judicial review arises, for while Captain Bast did commence the military grievance procedure required under QR & O 19.26, with a request to his Commanding Officer, that procedure was not initiated until 1 May 1998, well after this application for judicial review was commenced. The Commanding Officer responded smartly: his reply is dated 4 May 1998.
[6] By reason of this action having been commenced the grievance procedure has not gone further, being suspended by Article 19.26(13) of the Queen's Regulations and Orders. Captain Bast believes that were the grievance procedure to go forward it would take at least a year to obtain a decision. At this point it would be appropriate to touch upon the procedure for a redress of grievance.
MILITARY GRIEVANCE PROCEDURE
[7] The miliary procedure for the redress of a grievance is set out in s. 19.26 of the Queen's Regulations and Orders (the "QR & O") and also in the Canadian Forces Administrative Order, 19-32. The grievance goes up the chain of command, to be dealt with at certain specified levels, until it reaches the Chief of Defence Staff, with a further right of appeal to the Minister of Defence. This redress procedure, through the chain of command, is made mandatory by QR & O 19.26(2), with each redress authority, being a commanding officer, an officer commanding a formation or command, the Chief of Defence Staff and the Minister to deal with the matter as expeditiously as possible (QR & O 19.26(1)(3)).
[8] S. 19.26(11) of the QR & O sets out a schedule requiring the commanding officer to make a decision on the grievance within thirty days, the officer commanding a formation within ninety days and the officer commanding a command within six months. There is no time requirement within which the Minister of Defence must make a decision. Before looking at all of this in the context of the Crown's motion to strike out I will touch upon my reasons for dismissing Captain Bast's motion for a stay and a direction to the Chief of Defence Staff.
APPLICANT'S MOTION FOR A STAY AND AN AD HOC GRIEVANCE PROCEDURE
[9] I considered the merits of the Applicant's request for a stay, in the context of whether there was a serous question, whether there might be irreparable harm if a stay were not granted and what might be the balance of convenience. Certainly the question is a serious one, however as to whether there might be irreparable harm, assuming for the moment that a further year and two-thirds of service might constitute irreparable harm, one must also assume that the steps which the grievance procedure describes will take a great deal of time. I was not prepared to make that assumption, particularly in that Captain Bast's Commanding Officer made his decision and gave a response to the 1 May 1998 grievance quite smartly. Overall there was no compelling reason to grant a stay, but rather the balance of convenience was in favour of denying a stay. But there was also the issue of whether the Court should or even could order the Chief of Defence Staff to make a response not dictated by the statutory grievance procedure.
[10] I also dismissed the Applicant's motion because it is inappropriate for the Court to either impose or to sanction an ad hoc grievance procedure, a grievance directly to the Chief of Defence Staff, in the face of a statutory grievance procedure which works its way up the military hierarchy. Moreover to enable the Court to issue a mandatory order there must be a relevant judicial review proceeding, rather than merely a petitioning of the Court to expedite a decision on a complaint outside the regular grievance procedure, a direct complaint which the Chief of Defence Staff need not answer. This is clear from the wording of s. 18.1(3) which allows the Court to require a federal board, commission or other tribunal to undertake some act where there has been an unlawful failure or refusal, but to trigger that section and allow the Court to use its powers, there must be a decision under judicial review. This concept has recently been touched on by Mr. Justice Teitelbaum in Stratégies St-Laurent Société Pour Vaincre La Pollution S.V.P. v. Fisheries and Oceans Canada, an unreported decision of 17 August 1998 in action T-1477-98, in which the plaintiff requested the Court issue a mandatory order requiring that the Minister of the Environment refer a matter to a public review panel. The motion was denied for there was no decision under review:
| "It is obvious on a reading of the plaintiffs' application for judicial review made, according to plaintiffs, pursuant to section 18.1(3) that no date of any decision is given. |
| In fact, if I understood the plaintiffs' submission, he states he is not attacking any decision. The plaintiffs argued they were not seeking judicial review of a decision of the Minister of Environment, rather, they were simply petitioning the Court to issue an order of mandamus or a mandatory injunction under paragraph 18.1(3) of the Federal Court Act. |
| I am satisfied this argument demonstrates a misunderstanding of the statutory framework. In order for the court to use its powers under subsection 18.1(3) of the Act, there must be an application for judicial review of a decision or order of a federal board, commission or other tribunal. ... |
| It is apparent from the opening words of subsection 18.1(3) of the Act that the powers of the trial division arise "on an application for judicial review". Thus, the Court cannot simply order a federal body to perform a duty when there is no decision or order under review. The applicants have not sought a review of any order of the Minister of the Environment so the Court cannot consider whether an order of mandamus or a mandatory injunction is required.". |
To repeat the words of Mr. Justice Teitelbaum, "... the Court cannot simply order a federal body to perform a duty when there is no decision or order under review": here we have a decision made by the Directorate of Military Careers, which is the subject of this judicial review proceeding, but no decision of the Commander in Chief against whom the Applicant seeks some form of interlocutory relief. I now turn to the Crown's motion to strike out the originating document.
CONSIDERATION OF MOTION TO STRIKE OUT
[11] The two competing view points are first, on the part of Captain Bast, that to follow the grievance procedure laid out in the QR & O would take about a year. Here I would note that Captain Bast has received a ruling from the Directorate of Military Careers, which is at National Defence Headquarters in Ottawa and that is a consideration when assessing the adequacy of the military grievance procedure and indeed whether the procedure might be of any value at all. The alternate view point, that of the Attorney General of Canada, is that the Applicant has not utilized or commenced the grievance procedure set out in QR & O 19.26 at all and should not be able to avoid that grievance procedure simply by choosing not to follow it. Granted, the judicial review process might arguably be accomplished in less time, but that is only one factor. Before looking at the merits of the Respondent's motion, I must first consider whether an application, as opposed to an action, may be struck out at all.
Striking Out an Application
[12] At first blush one might consider using Rule 221 to strike out what was formerly an originating notice of motion and which is now a notice of application. Rule 221(1) allows a pleading to be struck out on various grounds. "Pleading" is now broadly defined in s. 2 of the Rules, in part, as "... a document in a proceeding in which a claim is initiated, ...". A proceeding is also a very broad definition. However Rule 221 is contained within Part 4 of the 1998 Federal Court Rules, a part which only applies to actions.
[13] Generally notices of application ought not to be struck out, but should be contested at their hearing. Mr. Justice Muldoon makes the point forcefully in Khalil Hasan v. Attorney General of Canada, an unreported decision of 11 May 1998 in actions T-316-98 and T-379-98, directing the respondent to focus on the hearing itself, not a summary procedure to strike out and in doing so referred to the jurisprudence to date, including Bull (David) Laboratories (Canada) v. Pharmacia Inc. et al., (1994) 176 N.R. 48 (F.C.A.). There the Court of Appeal noted that "... the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself." (p. 52). But the Federal Court has, from time to time, in exceptional instances, struck out an application for judicial review which could not possibly succeed. This procedure is, in limited instances, left open by the comment of Mr. Justice Strayer, who delivered the reasons for the Court of Appeal in the David Bull case, where an application is so clearly improper as to be without any possibility of success:
| "For these reasons we are satisfied that the trial judge properly declined to make an order striking out, under rule 419 or by means of the gap rule, as if this were an action. This is not to say that there is no jurisdiction in this court either inherent or through rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. (See e.g. Cynamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al. [1994] 1 F.C. 102; 64 F.T.R. 127, at 120-121 F.C. (T.D.)). Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.". |
In the David Bull case Mr. Justice Strayer was giving an opinion, not making a determination. As I say the Court has, from time to time, struck out applications, including in Canadian Pasta Manufacturers' Association v. Aurora Importing & Distributing Ltd., an unreported 23 April 1997 decision in proceeding A-252-97: there the Federal Court of Appeal struck out a judicial review application where, in their opinion, it could not possible succeed. However the Court ought not to make a usual practice of striking out applications and here I will refer to a passage from Laura-Lee Brown v. Attorney General of Canada, an unreported 8 April 1998 decision of mine in action T-228-98:
| "To make it a usual step to bring interlocutory motions to strike out suspect judicial review proceedings would be wasteful of time and resources. Alternately, it would be an equally irresponsible waste of time and resources to allow a futile judicial review proceeding, one which will not lead to any practical result, to proceed beyond a motion to strike out. It may well be for these reasons that the Court of Appeal, in David Bull Laboratories, did not foreclose the possibility of striking out a motion under rule 419, but did set a stringent test, that an originating notice of motion must be '... so clearly improper as to be bereft of any possibility of success.'". |
Thus, in order to succeed, the Respondent must show that the application is "... so clearly improper as to be bereft of any possibility of success.". I now turn to a consideration of whether the Applicant may ignore the grievance procedure by reason of that procedure being inadequate.
Adequacy of the Grievance Procedure
[14] Captain Bast wishes to pursue a judicial review remedy as it might be quicker than the military grievance procedure, a procedure which was initiated only after this action was commenced. Thus, while there are similarities between the present case and that of Laura-Lee Brown (supra), the Applicant says the Laura-Lee Brown case may be distinguished because Ms. Brown did not file a grievance at all, but went direct to the Directorate of Military Careers in Ottawa. Here, Captain Bast has tried not only to obtain a response from the Directorate of Military Careers, but also, at a very late stage, took the first step in the QR & O grievance procedure. To my mind this raises two issues, first the adequacy of the grievance procedure generally and second, whether in the light of the view of the Directorate of Military Careers, Ottawa, the grievance procedure has been exhausted and is futile, at least as far up the grievance hierarchy as the Chief of Defence Staff, Ottawa.
[15] In Laura-Lee Brown I considered the grievance procedure, a series of forums in the chain of command, at length. I shall abridge that consideration in the present instance.
[16] In considering whether the Applicant has, in the hierarchical grievance procedure, an adequate forum, I recognize that an adequate forum does not automatically preclude the Court from exercising its discretion and hearing such a case on judicial review: see for example Harelkin v. The University of Regina [1979] 2 S.C.R. 561. These factors which the Supreme Court noted should be considered include the procedure, the person or persons making the decision, the powers the decision makers have, the manner in which the powers are likely to be exercised, expeditiousness and cost: see Harelkin at p. 588.
[17] Now there are two lines of cases which have a bearing on Captain Bast's situation. The first is Gayler v. Director Personnel, Careers Adminstration, Other Ranks, National Defence Headquarters et al. (1995) 88 F.T.R. 241, a decision of Mr. Justice MacKay of the Trial Division. In Gayler the applicant sought review of a decision made by the Director Personnel, Careers Administration, Other Ranks, a decision clearly made on behalf of the Chief of Defence Staff. That being the case the grievance procedure would have been meaningless until Ms. Gayler had worked her way up the grievance procedure, past the Chief of Defence Staff, to the Minister of Defence. It was in that instance a grievance procedure which would, until Ms. Gayler reached the Minister of Defence, be meaningless, Mr. Justice MacKay decided the applicant was not precluded, by a meaningless set of appeals up the chain of command, from by-passing the grievance procedure and going directly to judicial review.
[18] The second line includes, Anderson v. Canada (Operations Officer, Fourth Maritime Operations Group) (1997) 141 D.L.R. (4th) 54, a decision of the Federal Court of Appeal and Couture v. Attorney General of Canada (1998) 136 F.T.R. 56 (T.D.).
[19] In Anderson (supra), Petty Officer Anderson began grievance proceedings to have the record of a counselling and probation order removed from his file. The application was dealt with by the commander Maritime Forces Pacific, who did not support the application. This led to a judicial review proceeding, which the Crown moved to strike out, a remedy denied at the trial level. The Court of Appeal touched upon Harelkin (supra) and went on to consider factors bearing on the adequacy of the alternative remedy, the military hierarchy of redress authorities.
[20] The Court of Appeal in Anderson acknowledged that the grievance procedure might take some time, but decided that delay was not a factor such as to warrant the Court's interference, In the result the Court decided the military grievance procedure was an adequate alternative remedy. On reaching that conclusion the Court struck out the application for judicial review (p. 62). However in reaching that conclusion the Court of Appeal had to deal with Gayler (supra): the Court of Appeal noted that Gayler was distinguishable because the Director Personnel, Careers Administration, Other Ranks, in Ottawa, made the decision, denying Ms. Gayler's grievance, on behalf of the Chief of Defence Staff. Thus, in Gayler, as I have pointed out, the grievance procedure would be meaningless until it reached the level beyond the Chief of Defence Staff. In Anderson it was still possible for the grievance procedure, even at a lower level, to have meaning because the decision upon which Petty Officer Anderson relied, as barring a meaningful grievance procedure, that of Rear Admiral Johnson, Commander, Maritime Forces Pacific, merely did not support the application. Thus the Court of Appeal held it would not be futile to submit the complaint to at least the next step in the grievance procedure for, all things considered, the grievance procedure was simple and straightforward, costs not being a factor and any delay not being such as to warrant the Court's intervention (see Anderson at p. 62).
[21] I now turn to the advice received by Captain Bast from the Directorate of Military Careers, Ottawa, the 18 February 1998 message which, for convenience, I will again set out:
| "1. RELEASE REQUEST BY CAPT BAST AT REF IS NOT SUPPORTED. MEMBER IS SUBJECT TO RESTRICTED RELEASE UNTIL 1 DEC 1999. |
| 2. EARLIEST DATE CAPT BAST MAY BE RELEASED FROM THE CF IS 2 DEC 1999.". |
Critical here is that while the message came from Military Headquarters in Ottawa, it is not, as in the Gayler case, a decision on behalf of the Chief of Defence Staff, Ottawa. In contrast to the Gayler case, the response which Captain Bast has received from Ottawa and which grounds this application for judicial review, is clearly only the view of the Directorate of Military Careers. The Director of Military Careers is certainly a person of rank in the Defence Headquarters in Ottawa, but is also a person outside of the statutory grievance procedure hierarchy. Thus the grievance procedure is not compromised until it reaches Ottawa, but could result in a favourable response at any of the lower stages, essentially the conclusion reached by the Court of Appeal in Anderson.
[22] In Couture (supra), Captain Couture launched a grievance arising out of a denial of release from obligatory service incurred by reason of education received in the military. Captain Couture engaged the military grievance procedure, but did not take the final two steps available to him, submission of his complaint to the Chief of Defence Staff and then to the Minister of Defence. Mr. Justice Nadon was unable to distinguish Captain Couture's situation from that dealt with by the Court of Appeal in Anderson. He therefore dismissed the application. I am also unable to distinguish Captain Bast's situation from that dealt with by the Court of Appeal in Anderson.
CONCLUSION
[23] I do not see Captain Bast's situation as falling within the principle in the Gayler case (supra) in which the grievance procedure was found purposeless until the applicant worked up the chain of command to reach the Chief of Defence Staff, only he having the authority to overturn a decision made on his behalf. Rather, the situation is one which falls clearly within the Laura-Lee Brown case (supra), in which I found, following the Court of Appeal decision in Anderson (supra), that the military grievance procedure can provide an adequate alternative remedy through a simple, straightforward and relatively inexpensive procedure in an adequate forum, experienced in grievance matters in the military. While it may be that Captain Bast, depending upon the outcome of his complaint within the military grievance system, will eventually have an arguable case for review, it is not a case for review in this Court at this time. In short, this is an application which is clearly improper. It is without any possibility of success and as such it would be an irresponsible waste of time and resources to allow such a futile judicial review proceeding to go ahead. The originating notice of motion of 24 March 1998 is struck out and Captain Bast's application is dismissed. The Crown did not seek costs and thus none are awarded.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
1 September 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-482-98
STYLE OF CAUSE: Daniel Christopher Bast
Applicant,
v.
Attorney General of Canada,
Respondent.
PLACE OF HEARING: Edmonton, AB
REASONS FOR ORDER OF MR. JOHN HARGRAVE, PROTHONOTARY
dated September 1, 1998
APPEARANCES:
| Mr. D.B. Murphy for the Applicant |
| Barrister and Solicitor |
| Edmonton, Alberta |
| Ms. Ursula Tauscher for the Respondent |
| Department of Justice |
| Edmonton, Alberta |
SOLICITORS OF RECORD:
| Mr. D.B. Murphy for the Applicant |
| Morris Rosenberg for Respondent |
Deputy Attorney General
of Canada