DECISION DATE: 20000803 COURT NO: SH 55402 CANADA PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIA and D.B. and THE ATTORNEY GENERAL FOR CANADA IN RIGHT OF THE DEPARTMENT OF NATIONAL DEFENCE AND HER MAJESTY THE QUEEN IN RIGHT OF CANADA DECISION HEARD BEFORE: The Honourable Justice A. David MacAdam, at Halifax, Nova Scotia DATE: May 3, 2000 WRITTEN RELEASE OF DECISION: August 3, 2000 COUNSEL: Norman W.P. Fraser John A. McKiggan, for the plaintiff Leanne Wrathall, counsel for the Crown [1] Counsel for the parties, for the purpose of this application, have signed an: AGREED STATEMENT OF FACTS 1. MJD was member of the Canadian Armed Forces. 2. DB pleaded guilty and was convicted on March 27, 1995 of sexually assaulting MJD under s. 271 of the Canadian Criminal Code. 3. MJD was voluntarily released from DND January 1996. 4. MJD claims to suffer from depression and post traumatic stress disorder (PTSD) due to the sexual assault. 5. In October 1996 DND, without MJD’s involvement, re-assessed her release from the Military and ruled that she should have been released on medical grounds, being disabled and not being able to fit to perform the duties of her trade or employment. 6. DND sent MJD letter advising her that she could possibly apply for pension. 7. MJD applied to Veterans Affairs Canada (VAC) for pension July 16, 1997. 8. Dr. DeRoche, her psychiatrist, in letter dated April 2, 1998 stated MJD was suffering from depression and PTSD due to rape and sexual assault. This letter was sent to VAC in support of MJD’s pension application. 9. April 23, 1998, VAC denied MJD’s pension. 10. April 1999, MJD sued in the Supreme Court of Nova Scotia. 11. The Ministers decision to deny MJD’s pension has not been appealed, has not been re-assessed by the Minister on his own motion, nor by application to the Minister by MJD to re-assess, based on new evidence. 12. The limitation period for appealing the Ministers decision has expired under the Pension Act. 13. MJD is not in receipt of pension benefits. [2] In answer to the plaintiff’s proceeding, the Crown’s defence, in paragraphs and 9, reads: 8) In the further alternative, the Defendant states if the Plaintiff has suffered injury, damage or loss in the course of her military service, which is not admitted but denied, she is entitled to pension benefits pursuant to the Pension Act, R.S.C., 1985, c. P-6 as amended. 9) The Defendant states that if the Plaintiff is eligible for pension benefits as described in paragraph herein, this claim is statute barred on the basis of: a) s.9 of the Crown Liability and Proceedings Act, supra b) s. 111 of the Pension Act, supra [3] Section of the Crown Liability and Proceedings Act, R.S.C. 1985, c.C-50, reads as follows: No proceedings lie against the Crown or servant of the Crown in respect of claim if 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. [4] Section 111 of the Pension Act, R.S. 1985, c. P-7, provides: 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 pension is or may be awarded under this Act or any other Act in respect of the disability or death. [5] The British Columbia Court of Appeal in Gustar v. Wadden et al (1994), 1994 CanLII 8705 (BC CA), 91 B.C.L.R. (2d) 86, at p. 90, in considering s. held: “Payable” does not mean “may be payable” depending upon the outcome of some future uncertain event. “Payable” means presently enforceable legal right to collect, and corresponding legal obligation to pay. [6] In Gustar, supra, an R.C.M.P. officer sued his fellow officers for defamation, assault, and invasion of privacy which allegedly caused him personal injury. At para. Justice Finch, on behalf of the Court, stated: Counsel for the Crown contended that the effect of s. was to require the appellant to apply for pension, and to show that pension is not payable to him. In my respectful view, that is an untenable position. The two superior officers plead s. as statutory defence. As with any such affirmative pleading, they thereby assume the obligation of proving the facts necessary to bring the case within the language of the statute. That includes the onus of proving that pension is “payable”. In the scheme contemplated by the Royal Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11, and the Pension Act, R.S.C. 1985, c. P-6, pension does not become payable until the employee makes an application for same, and the Canada Pension Commission has granted the “award” of pension in the applicant’s favour. On the admitted facts of this case, the Crown cannot meet that onus because the appellant has never made an application for pension. can see nothing in the Crown Liability and Proceedings Act, or any other statute to which we were referred, which would impose upon the appellant the reverse onus for which the Crown now contends. To interpret the section as imposing an obligation on the employee to apply for pension, and further obligation upon him to prove that pension is not payable, would require us to read into the legislation concepts which are both unexpressed and unreasonable. [8] At paragraph 16, the Court stated: In my view the effect of the stay ordered in this case was to impose upon the appellant an obligation to apply for pension, and then to demonstrate that pension was not payable to him. With respect, this is misinterpretation of s. 9. In order to raise s. as successful defence the Crown, or its servants, must prove facts to bring the case within the ambit of that legislation. That includes, for the purpose of this case, proving the fact that pension is payable. The Crown has not met that onus, and on the admitted facts cannot do so. [9] In the present circumstances it is unnecessary to consider whether even absent any application for pension, claimant may pursue civil remedies and relief. The plaintiff applied for and was denied pension. Clearly pension is not at this time payable to her. [10] However the validity of the Crown’s defence that the plaintiff is barred from bringing this proceeding is also pressed pursuant to s. 111. The relevant wording in s. 111 is “where pension is or may be awarded”. It is essentially the very phrase that in Gustar, supra, the court said was not the meaning of the equivalent phrase appearing in s. 9. The court in Gustar, supra, does not appear to have considered the application of s. 111. [11] In Leach v. Canada, [1995] F.C.J. No. 1680, the Federal Court considered both s. and s. 111 and whether they provided defence to the plaintiff’s action. In para. 12, the Court stated: In my view, the most helpful analysis of Section 111 is found in the Federal Court of Appeal decision in Tremblay v. The Queen, [1976] F.C. 758. In that case, no application for pension had been made. The Court was considering, with reference to section 88 of the Pension Act (now) Section 111), whether pension “may be awarded”. It did not conclude that the answer was no simply because no application had been made. Rather, it looked at the facts to see whether pension “may be awarded”. Section 88…only applies where, at the time the Section is being invoked, there are facts that vest in the Commission an existing jurisdiction to award pension. In Tremblay the Court found that no such facts existed and that Section 111 was, therefore, not bar to the proceedings. The trial decision which has stuck out declaration for damages was set aside, and the action was allowed to proceed. [12] Counsel for the plaintiff, after referencing the foregoing, continues: In the case at bar, the answer to the question posed by the Federal Court of Appeal in Tremblay and the Federal Court in Leach has been answered. The proper question is whether “pension may be awarded”. In both cases pension had not been applied for. In the case at bar, the pension was applied for and was denied by the Crown and therefore s. 111 provides no defence and paragraph (b) of the Statement of Defence should be dismissed. It is respectfully submitted that the Crown is estopped from saying the plaintiff’s claim is barred by her entitlement to pension when the Crown itself has denied her pension following her application. The Crown, having denied her a pension cannot come forward now and say that she is barred in this action because she is now entitled to a pension when they have already decided otherwise. To permit that argument to carry the day would be a traversity of justice and bring the administration of justice into disrepute. In Tremblay v. Canada the trial judge struck out an action for damages by the Plaintiff as result of the death of her son, member of the Canadian Forces Reserve, caused by the negligence of servant of the defendant on the grounds that under s. 4(1) of the Crown Liability Act or s. 88 of the Pension Act no action lies against the Crown where pension is being paid or is “payable”. The Federal Court of Appeal reversed that decision, [1976] F.C. 758. The majority held in substance, that since no pension had been paid or awarded, it followed that no pension was payable. [13] The Crown takes the position that the plaintiff’s proceeding is premature. In view of s. and s. 111, before taking this proceeding, it is first necessary for the plaintiff to exhaust her administrative remedies. Counsel in her written submission says: Support for the proposition that the administrative process must be exhausted before recourse to the civil court can be found in Townsend v. Canada, (1994) 74 F.T.R. 21 (F.C.T.D.). In that case, federal government employee brought an action for constructive dismissal. The Crown made application to have the claim struck as disclosing no reasonable cause of action. The Federal Court, Trial Division, struck the claim. The Court relied on s. 24 of the Public Service Employment Act and held that remedies for dismissed federal employees lay elsewhere and not in civil actions for wrongful dismissal. At paragraph of the judgment, Justice Tremblay-Lamer stated: The rule that recourse to alternative bodies is bar to court actions has been considered by the courts in various contexts and is applicable to the present instance. (emphasis added) [14] This rule was also applied in Haswell v. Canada (Attorney General), [1998] O.J. No. 526 (O.C.J.), confirmed on appeal [1998] O.J. No. 5179 (O.C.A.). In that case, the plaintiff, military officer, was advised that he would be compulsorily retired pursuant to the provisions of the National Defence Act and the Queen’s Regulations and Orders. The plaintiff did not pursue grievance regarding the compulsory retirement as he could have under s. 29 of the National Defence Act. After his compulsory retirement, the plaintiff filed civil action based in tort, alleging he was negligently or arbitrarily released from the military. The Crown brought an application to strike the statement of claim on the basis it disclosed no reasonable cause of action. In striking the action Justice Chadwick stated at para 12: Notwithstanding the attempts by the plaintiff to frame the action in tort by the use of the word “negligently” in my view the facts as pleaded in the statement of claim clearly establish the claim relates to the plaintiff’s engagement as member of the Armed Forces and in particular his compulsory retirement from that engagement would be covered by the National Defence Act and Regulations the remedies provided therein. As such the plaintiff’s remedies would be in the exclusive jurisdiction of the Federal Court and this court would not have any jurisdiction as result of s. 18 of the Federal Courts Act. [15] The Crown in her written submission continues: Townsend and Haswell, were both cases where the plaintiff ignored the administrative process in favor of civil action and the Court held that they had to pursue the administrative process. This begs the question what the Court would do had the plaintiff’s pursued the administrative process and then commenced civil action. In Johnson-Paquette v. Canada (1998), 1998 CanLII 8709 (FC), 159 F.T.R. 42; [1998] F.C.J. No. 1741 (T.D.) (Q.C.) the plaintiff had proceeded with the grievance process but did not pursue judicial review when his grievance was unsuccessful. He filed civil action and the court held that it did not have jurisdiction. In his decision Justice Trembley-Lamer said: In the present case, the plaintiff has not exhausted the grievance procedure provided under the PSSRA and the resulting judicial review. She is attempting to seek judicial review of the grievance officer’s decision by way of an action for damages in tort this she cannot do. (emphasis added) [16] As advanced by counsel for the plaintiff the authorities referenced by the Crown involve employment or dismissal cases where the terms and conditions of employment incorporated dispute resolution mechanisms. By the terms of these administrative mechanisms, there were pre-defined steps to be followed by persons dissatisfied by the initial administrative decision. Such, apart from s. and s. 111, are not available to the plaintiff. These legislated provisions clearly provide the right to pursue alternative remedies and relief where the restrictions in the two sections are not applicable. [17] It is unnecessary to decide whether, in order to satisfy the conditions contained in s. and s.111, the plaintiff first had to make application for pension. Here the plaintiff made an application and was denied. The Crown says she should have appealed or applied for review, both steps being available to her under the Pension Act. review requires, apparently, new information, and therefore presumably an application for review without new information would be bound to fail. The appeal period has now expired. As such, absent new information, the plaintiff would have nowhere to go to seek relief or redress. [18] It is also inconceivable that having been denied the application for pension the plaintiff is precluded from bringing this proceeding because she failed to appeal in time. Assuming an individual accepts the Minister’s denial but believes for reasons unrelated to the pension application they are entitled to relief or remedy against the Crown counsel’s position would require the plaintiff to pursue meaningless appeals simply to meet the conditions of s. and s. 111. [19] Counsel for the plaintiff, in concluding his written submission, says: Section 111 of the Pension Act or s. of the Crown Liability and Proceedings Act cannot be read having regard to these authorities to amount to the proposition that having been denied pension by the government for sexual assault the Plaintiff is now barred from bringing an action for damages against the government claiming that she is now entitled to pension.
After being sexually assaulted, applicant was voluntarily released from Canadian Armed Forces. She applied for and was denied a pension. Civil proceedings were commenced and the Crown defended on the basis that before initiating civil proceedings, applicant was obliged to appeal denial of pension or seek review by Minister of pension rejection. Applicant applied to strike out that portion of defence application allowed. The applicant applied for and was denied a pension. Therefore no pension was at this time payable to her. A review by the Minister would require new information and the appeal period had expired. The applicant should not be denied her right to proceed against the Crown in such circumstances.