PRACTICE |
Commencement of Proceedings |
Tremblay v. Canada
T-541-02
2003 FC 1204, Rouleau J.
17/10/03
13 pp.
Appeal from prothonotary's order dismissing motion to strike plaintiff's action--Plaintiff placed on retirement due to compulsory retirement age contained in Queen's Regulations and Orders for Canadian Forces asked to be reinstated in employment, receive compensation for salary lost and have Court rule provisions of Queen's Orders and Canadian Human Rights Act (s. 15(1)(b), (c)) contrary to Charter, ss. 1, 15 and so of no force or effect--(1) Whether prothonotary erred in finding Crown could not rely on six-month prescription contained in National Defence Act (NDA), s. 269(1) as to prescription of plaintiff's action--(2) Whether prothonotary exceeded jurisdiction by ordering plaintiff to file reamended statement of claim--(3) Whether prothonotary erred in deciding plaintiff should proceed by statement of claim rather than by judicial review--Appeal dismissed--(1) Prothonotary correctly found NDA, s. 269(1) inapplicable in case at bar since plaintiff's action aimed directly at Crown for legislative acts, not indirectly for actions of Crown employee-- Government can rely on Crown Liability and Proceedings Act, s. 24(a) but only if government sued for fault of person covered by NDA, s. 269(1)--Government cannot appropriate defences of persons not covered by actions--(2) Order arises from conclusion on third point at issue, namely case should proceed by action, not judicial review--(3) Prothonotary did not err in deciding plaintiff should proceed by statement of claim rather than by judicial review--Under Federal Court Act, ss. 17(1), 48 application against Crown for declaration instituted by action--Prothonotary found plaintiff's first remedies more in nature of action and application for reinstatement could be decided in disposing of action--As no prescription deadlines applicable under federal legislation in case at bar, pursuant to Federal Court Act, s. 39(1) applicable prescription deadline that of province of Quebec and plaintiff's action brought before that deadline expired-- However, plaintiff must comply with requirements of Federal Court Act, s. 57 and prepare his record in accordance with requirements of Federal Court Rules, rr. 60 - 71--National Defence Act, R.S.C., 1985, c. N-5, s. 269(1)--Federal Court Act, R.S.C. 1985, c. F-7, ss. 17(1), 39(1), 48, 57 (as am. by S.C. 1990, c. 8, s. 19)--Federal Court Rules, 1998, SOR/98-106, rr. 60 - 71 (s. 70 as am. by SOR/2002-417, s. 9)--Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 24(a) (as am. by S.C. 1990, c. 8, s. 30; 2001, c. 4, s. 48)--Queen's Regulations and Orders for Canadian Forces (1994 Revision)--Canadian Charter of Rights and Freedoms, being Part I of Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1-15--Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 15(1).