Date: 20040430
Docket: A-490-03
Citation: 2004 FCA 172
CORAM: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
ANDRÉ TREMBLAY
Respondent
Hearing held at Montréal, Quebec, April 19, 2004
Judgment delivered at Ottawa, Ontario, April 30, 2004
REASONS FOR JUDGMENT: DESJARDINS J.A.
CONCURRED IN BY: NOËL J.A.
NADON J.A.
Date: 20040430
Docket: A-490-03
Citation: 2004 FCA 172
CORAM: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
ANDRÉ TREMBLAY
Respondent
REASONS FOR JUDGMENT
DESJARDINS J.A.
[1] This is an appeal involving the remedies provided by sections 17 and 18 of the Federal Courts Act, R.S. 1985, c. F-7 (the Act). The issue in this case is whether the respondent can proceed by way of action under section 17 of the Act or whether the only remedy available to him is a judicial review procedure.
[2] The respondent was a member of the Canadian Forces from January 1, 1962 to October 9, 1969, then from September 26, 1991, to March 31, 1999. He retired after that date in accordance with the mandatory retirement age provisions in section 15.17 of the Queen's Regulations and Orders for the Canadian Forces (QROCF). The record does not indicate how the retirement came about, but it is undisputed that it was an act by a "federal board, commission or other tribunal" within the meaning of section 2 of the Act.
[3] Almost three years later, on March 28, 2002, the respondent filed an action asking that the sections of the QROCF prescribing the mandatory retirement age, paragraph 15(1)(b) of the Canadian Human Rights Act - in force when the QROCF were adopted - as well as paragraph 15(1)(c) of the Canadian Human Rights Act, be declared inoperative because they are inconsistent with sections 3 and 7 of the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms (the Charter). The respondent was seeking reinstatement in the Canadian Forces as well as damages.
[4] In a motion to strike, the appellant claimed that the respondent's action was barred under section 269 of the National Defence Act, R.S. 1985, c. N-5. She requested, in the alternative, that any relief in the nature of a judicial review be struck.
[5] Before us, the appellant is appealing an order by a judge of the Federal Court (October 17, 2003, reported at [2003] F.C.J. No. 1520, later amended on October 24, 2003), dismissing her appeal from an order by a prothonotary, which, in turn, had dismissed her motion to strike the respondent's action.
1. THE APPLICABLE TEST
[6] The parties acknowledge that a motion to strike cannot be allowed unless it is "plain and obvious" that the statement of claim discloses no reasonable cause of action (paragraph 221(1)(a) of the Federal Court Rules, 1998; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, at paragraph 15; Canada (Attorney General) v. Inuit Tapirisat, [1980] 2 S.C.R. 735, at page 740).
[7] They also recognize that the first judge could not interfere with the prothonotary's discretionary decision unless he determined that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts (Merck Co. Inc. v. Apotex Inc., [2003] FCA 488, paragraphs 19 and 20; Z.I. Pompey Industrie v. ECU-Line N.V., [2003] 1 S.C.R. 450).
2. ISSUES
[8] In our opinion, it would be useful to reformulate the two issues raised in this appeal to read as follows:
(1) Could the plaintiff proceed by action or should he have proceeded by way of judicial review?
(2) In the event that the plaintiff could proceed by action, is the action out of time considering the brief six-month limitation period provided by section 269 of the National Defence Act?
3. ANALYSIS
(1) Could the plaintiff proceed by action or should he have proceeded by way of judicial review?
[9] Section 18 of the Act deals with discretionary remedies which formerly fell under prerogative writs, to which were added injunctions and declarations, having their roots in equity. These remedies are said to be "extraordinary" because they are generally not allowed if other remedies are also available (D. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada, (Toronto: Canvasback Publishing, c. 3-1).
[10] Section 18 confers exclusive original jurisdiction to the Federal Court to exercise judicial review remedies against any federal board, commission or other tribunal. It is the cornerstone of the Act, which was adopted in 1971 after the Supreme Court of Canada's decision in Three Rivers Boatman Ltd. v. Canada (Labour Relations Board), [1969] S.C.R. 607. The Parliament of Canada then ensured that federal boards, commissions or other tribunals, whose activities are spread across Canada, would not be subjected to potentially contradictory decisions from one province to the next. Henceforth, they would come under the superintending and reforming power of the Federal Court of Canada.
[11] The definition of a "federal board, commission or other tribunal" in section 2 of the Act has not always been so broad. It was only after amendments, which came into effect on February 1, 1992 (S.C. 1990 c. 8, SI 92-6, Gaz. C. 1992. II. 280, Vol. 126, No. 1), that an order made pursuant to a prerogative of the Crown became open to judicial review. Judicial review had once been limited to decisions made under federal acts. The inclusion of decisions made pursuant to a Crown prerogative obliges us to carefully read the remarks made by Thurlow J.A., speaking for the Court, in Canada (Minister of National Revenue - MNR) v. Creative Shoes Ltd., [1972] F.C. 993, at paragraph 17. Thurlow J.A. correctly stated that, at the time, the words "federal board, commission or other tribunal" did not include the Crown. In so doing, he was relying on paragraph 2(g) of the Act before the amendments of 1992.
[12] Section 17 of the Act also addresses claims for relief against the Crown or its servants. The word "relief" in section 2 of the Act is defined to include a declaration. The remedies of section 17 are claimed by way of an action (subsection 17(5) of the Act).
[13] A declaration of invalidity can be obtained through the application of sections 17 and 18 of the Act. It does not necessarily follow that the respondent had the choice of proceeding with either one or the other of these two sections. In order to determine the appropriate remedy on which he could base his claims, I must examine the relief sought in his statement of claim. The following relief was sought:
[TRANSLATION]
DECLARE that the sections on mandatory retirement age in the QROCF are inoperative, because they are inconsistent with the Canadian Charter of Rights and Freedoms;
DECLARE paragraph 15(1)(b) of the Canadian Human Rights Act inoperative, because it is inconsistent with the Canadian Charter of Rights and Freedoms and, accordingly, declare that the sections on mandatory retirement age in the QROCF are inoperative, because they are inconsistent with sections 3 and 7 of the Canadian Human Rights Act;
ORDER the plaintiff's reinstatement at the C-4 level or its equivalent at the date of his reinstatement;
ORDER the payment of $19,000.00 for each lost year of service, plus pension adjustments, with annualised interest on the revenue base of $19,000.00 per year;
WITH COSTS.
[14] Obviously, the applicant cannot obtain reinstatement in the Canadian Forces as well as damages for loss of salary unless he first attacks the decision bearing on his retirement on the basis that the legislation underlying the retirement is inoperative under the Charter. The invalidity of this decision is at the heart of his claim and the relief sought depends on this alleged invalidity. The respondent will only be entitled to reinstatement once the decision is declared invalid. Damages can only be claimed once the reinstatement is ordered.
[15] Given the distinct characteristics governing judicial reviews and legal actions, I must analyze separately the relief sought by the respondent pertaining to the invalidity of his retirement and to his reinstatement, and then the relief pertaining to the loss of salary.
(a) The invalidity of the respondent's retirement and his claim for reinstatement
[16] The respondent's retirement involved a decision made by a "federal board, commission or other tribunal" within the meaning of sections 18 and 2 of the Act. Even though the respondent did not file any letter or document relating to his retirement, the procedure followed at the time of this retirement constituted an act or decision by a "person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown" (section 2 of the Act). The only way to have the respondent's retirement declared illegal on the basis that the retirement was taken under legislation or regulations that were inconsistent with the Charter would be to challenge the decision by judicial review (subsection 18(3) of the Act). Section 18 of the Act provides that extraordinary measures cannot be treated and proceeded with as an action, except when the Federal Court considers it appropriate (subsection 18.4(2) of the Act). The Act does not provide that an action may be treated and proceeded with as a judicial review.
[17] In this case, the respondent totally disregarded sections 18 et seq. of the Act. He brought an action against the Federal Crown pursuant to subsection 17(1) of the Act, which, as stated earlier, confers jurisdiction to the Federal Court in cases in which relief is claimed against the Crown. The respondent relies on the word "relief" in section 2 of the Act to support him, in that "relief" includes a "declaration". He explains that he brought his action within the three-year period provided by the Civil Code of Quebec, a period that he says is applicable pursuant to section 32 of the Crown Liability and Proceedings Act, R.S. 1985, c. 50.
[18] The respondent cannot, however, proceed by way of an action since subsection 18(3) of the Act provides exclusively for relief by way of judicial review when impugning a decision by a federal board, commission or other tribunal.
[19] The respondent's application for judicial review was also out of time. Applications for judicial review must be made within 30 days after the decision or order was first communicated by the federal board, commission or other tribunal. That is a statutory time limit which exists because of the need to ensure a degree of stability in decisions by the federal administration. Additional time can nevertheless be allowed before or after the end of those 30 days by a judge of the Federal Court (subsection 18.1(2) of the Act) in accordance with the usual requirements.
[20] Relying on this Court's decision in Sweet v. Canada, [1999] F.C.J. No. 1539 (Sweet), the respondent claims, at paragraphs 23 and 35 of his memorandum, that if judicial review is an available remedy, then a declaration by way of an action is as well, and that the party can enforce his claims in a unique proceeding when damages are sought, in which case the Court must determine the most efficient procedure.
[21] Our Court's decision in Sweet, supra, did not involve the same considerations as those in this case. The inmate in that case had brought an action but he could conceivably have proceeded by way of judicial review because the time limits had not been exceeded in either of the two procedures. It is in this sense that one must understand paragraph 16 of Décary J.A.'s reasons when he wrote, inter alia:
[16] It therefore serves no useful purpose to move to strike pleadings when, at the end of the day, the Court will allow the applicant or plaintiff to file a new, and correct, proceeding. . . .
[22] It is in this context that he stated at paragraph 17:
[17] It seems to me that in a case where many different sorts of relief are claimed, some of which require an action and some of which require judicial review, the proper course is to determine which relief it makes more sense to decide first, then to determine whether the procedure taken is the proper one with respect to that relief and, if not, to allow the party to correct it with appropriate amendments.
[Emphasis added.]
In the interest of the proper functioning of the legal system, our Court meant to allow an individual to proceed with the corrections necessary to the proceeding brought rather than being confronted with a motion to strike. It does not follow that the Court intended to allow a proceeding which essentially falls under judicial review procedure to be disguised as an action in order to circumvent the remedy being unavailable because it is out of time.
[23] Zarzour v. Canada, [2000] F.C.J. No. 2070, cited by both parties, also dealt with a different issue. In that matter, the inmate tried to have two letters from his ex-wife removed from his records held by the National Parole Board and the Correctional Service of Canada. These letters, he said, caused him prejudice with these two organizations. He brought an action (Zarzour, paragraph 13), in which he claimed that his Charter rights had been violated and that he was entitled to the compensation and damages he was claiming. The National Parole Board, for its part, had made a decision authorizing him to take unescorted leave under certain conditions. Some were related to his polymorphous criminality. Another prohibited him from directly or indirectly contacting his ex-wife.
[24] Létourneau J.A. summarized the procedural issue raised at first instance in paragraph 46 of his reasons:
[46] . . . Could the respondent proceed by an action in damages as he did, citing the unlawfulness of the Board's decisions? Or should he instead have filed an application for judicial review under section 18.1 of the Federal Court Act, to attack these decisions within the allotted time? . . .
[Emphasis added.]
[25] Létourneau J.A. stated the following at paragraphs 48 and 49 of his reasons:
[48] It is necessary, I think, to adopt an utilitarian approach to this, and favour the proceeding that can be used to eliminate or repair the harm resulting from the decision that was rendered. For example, there is no use in requiring that an inmate who has already served his 15-day segregation period seek to have the decision that forced this on him set aside by way of judicial review. However, when a decision is still operative, as is the Board decision in this case imposing a prohibition on contact as a condition of release, it is not only useful but necessary to proceed by judicial review in order to have it quashed. Otherwise, both the decision and its effects will drag on, with possible aggravation of the harm during the period in which the action in damages follows its course.
[49] It was this pragmatic approach that was rightly adopted by Prothonotary Hargrave in Shaw v. Canada (1997), 134 F.T.R. 128. At paragraph 23 of his decision, he writes:
[23] I do not see that a plaintiff must, in all circumstances, first bring an application for judicial review and only then, if successful, bring an action for damages. All the more so when a declaration would serve no current purpose. Further, this is not a situation in which the procedures the plaintiff employs are alternatives leading to one end: the remedies are very different. Finally, where there are several approaches or procedures a court should impose the least intrusive remedy capable of providing a cure. In summary, I can see no utility in forcing the plaintiff to try to obtain declaratory relief, concerning something that happened over a year ago, in order to then begin a second piece of litigation by which to claim damages.
Unfortunately, there is no magic formula applicable to all situations to which there is more than one remedy. Each case is sui generis, and must be assessed on its merits in order to determine the appropriate procedure.
[26] Quoting Prothonotary Hargrave, Létourneau J.A. recognized that there could be cases when judicial review proceedings would be of no use. He also recognized that there could be cases where the time limit in subsection 18.1(2) has been respected (see the phrasing of the issue before him). Neither of these two situations are applicable in this case.
[27] The respondent cannot opt between two procedures. To be reinstated, he must necessarily proceed by judicial review. He can only be reinstated if he has the decision regarding his retirement invalidated.
(b) The loss of salary
[28] The respondent is claiming monetary compensation for his loss of salary. Damages cannot be claimed in an application for judicial review because they are not contemplated by subsection 18.1(3) of the Act (De-Nobile v. Canada (Attorney General, [1999] F.C.J. No. 1727). The damages can only be claimed through an action, and only after the decision of the federal board, commission or other tribunal has been set aside. Section 17 of the Act is the appropriate remedy in this case. The respondent must, however, establish that the federal board, commission or other tribunal was acting as a "servant or agent of the Crown" for "anything . . . done in the performance of the duties of that person " (subsection 17(5) of the Act; David J. Mullan, Administrative Law, 3rd ed., (Toronto: Carswell, 1996), § 721, 722). His action must obviously not be time-barred.
[29] This matter illustrates the fine line that exists between a judicial review and a court action. This issue is addressed by Sgayias et al. in Federal Court Practice (2004 edition, pages 27-28):
A fresh debate has arisen, this time involving section 18 and section 17. At issue is the boundary between an application for judicial review against a federal board and an action against the Crown. The boundary blurs when declaratory relief is involved: that form of relief is available under both section 18 and section 17. However, the boundary is real. Judicial review is obtained by way of application under section 18.1 and is only exceptionally pursued by way of action (section 18.4(2)). Relief against the Crown is obtained by way of an action under section 17, in which claims for declaratory relief may be combined with claims for other relief such as damages.
An application for judicial review must be taken where the relief sought is prerogative, injunctive or declaratory and that relief is sought against the decision or actions of a body or person exercising statutory powers. However, an application for judicial review cannot include a claim for damages: De-Nobile v. Canada (A.G.) (October 22, 1999), Doc. T-2238-98 (Fed. T.D.). Nor can it include a claim against the Crown itself: M.N.R. v. Creative Shoes Ltd., [1972] F.C. 993 (C.A.). Such claims must be pursued by action. Declaratory relief can be sought in the action: Ward v. Samson Cree Nation No. 444 (1999), 247 N.R. 254 (Fed. C.A.). Judicial review cannot be obtained in the action: Lake Babine Indian Band v. Williams (1996), 194 N.R. 44 (Fed. C.A.). The result may be a series of proceedings, one seeking judicial review of a decision, another seeking consequential damages: Sweet v. Canada (1999), 249 N.R. 17 (Fed. C.A.). The result may also be that the validity of legislation may be challenged by action, but decisions taken under the impugned legislation cannot: McKay v. Canada (Min. of Fisheries & Oceans) (1998), 160 F.T.R. 301 (T.D.).
[30] The answer to the first issue, therefore, is this: the respondent could not proceed by way of an action to invalidate the decision on his retirement and reinstatement. If this had been decided after an application for judicial review, the respondent could then bring an action for relief if he fulfilled the conditions.
(2) In the event that the plaintiff could proceed by action, is the action out of time considering the brief six-month limitation period provided by section 269 of the National Defence Act?
[31] In light of my findings on the first issue, it would be premature, at this stage, to resolve the second issue. A finding that the decision on retirement was invalid is dependant upon a motion for extension of time and an application for judicial review, which have not been filed or decided. The issue of limitation period could be raised again by the appellant in subsequent proceedings, if they take place.
4. CONCLUSION
[32] The appellant's motion to strike must therefore be allowed in part since the action brought by the respondent has no chance of succeeding. Assuming that his retirement were found to be inconsistent with the provisions of the Charter, it would be inappropriate to proceed by way of action as a means for the respondent to get reinstated.
[33] A decision by a federal board, commission or other tribunal must be impugned by way of judicial review. The respondent is, however, out of time to do so. He can nevertheless be relieved of his default if he meets the requirements applicable to an application for extension of time under subsection 18.1(2) of the Act.
[34] A court action is the appropriate proceeding for obtaining monetary compensation, since relief of this kind cannot be the subject of an application for judicial review. The third form of relief in the respondent's action, pertaining to a claim for damages, will therefore not be struck until such time as the respondent has exhausted the remedies of subsection 18.1(2) of the Act - if that is his intention - namely an application for extension of time and then, if leave is given, an application for judicial review, the remedy of section 18 of the Act. If he should succeed in both of these two proceedings, the respondent could then pursue the action in damages that he has already brought. His action in damages should be stayed so that, if possible, he will be able to exercise his right to a monetary claim in a timely manner. However, should the respondent be unsuccessful in his application for an extension of time, or should he succeed but then be unsuccessful in his application for judicial review, he will not be able to pursue his action. The striking out will take effect without further proceedings or formalities if the application for extension of time is dismissed or, should it be allowed, if the application for judicial review is dismissed by final judgment.
[35] I would not award costs in view of the mixed results.
"Alice Desjardins"
J.A.
"I agree
Marc Noël"
"I agree
M. Nadon"
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-490-03
APPEAL OF THE ORDER MADE BY THE HONOURABLE MR. JUSTICE ROULEAU OF THE FEDERAL COURT DATED OCTOBER 17, 2003, IN DOCKET T-541-02.
STYLE OF CAUSE: HER MAJESTY THE QUEEN v. ANDRÉ TREMBLAY
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 19, 2004
REASONS FOR JUDGMENT: DESJARDINS J.A.
CONCURRED IN BY: NOËL J.A.
NADON J.A.
DATE OF REASONS: April 30, 2004
APPEARANCES:
Chantal Sauriol FOR THE APPELLANT
Alain Tremblay FOR THE RESPONDENT
SOLICITORS OF RECORD:
MORRIS ROSENBERG
Deputy Attorney General of Canada
Montréal, Quebec FOR THE APPELLANT
OUELLET, NADON & ASSOCIÉS
Montréal, Quebec FOR THE RESPONDENT