Digests

Duplessis v. Canada

T-294-00

Aronovitch P.

17/11/00

29 pp.

Action for damages ($500,000) resulting from allegedly callous, arbitrary manner in which plaintiff treated by Canadian Armed Forces--Crown moving to strike entire claim--Plaintiff serving in Canadian military between October 1977 and October 1997, date of release--Prior to release, served in peace keeping missions in Croatia, Bosnia, in 1992, where experienced traumatic conditions during official duties--On return from missions, plaintiff suffered from variety of stress-related symptoms--Claimed that, in February 1997, duties, responsibilities unilaterally altered--Plaintiff demoted, stripped of all previous supervisory responsibilities--Went on sick leave in August 1997, until discharge in October 1997--Receiving pension (75% disability)--Crown moving to strike claim under r. 221(1)--Claim to be struck under r. 221(1)(a) only where plain, obvious, beyond doubt it cannot succeed--Defendant claiming action precluded by Crown Liability and Proceedings Act, s. 9 and Pension Act, s. 111--Plaintiff's claim based on Crown's fiduciary duty--Not plain and obvious plaintiff's claim should fail--Serious question of law more appropriately left for determination by Trial Judge on merits--Claim also based on Charter, s. 7--Physical, mental integrity covered within ambit of s. 7--Applicability of Charter, s. 7 restricted to situations where individual's "life, liberty and security of the person" affected through direct contact with justice system, administration--S. 7 rights context specific--Claim should not be rejected unless clearly, definitively outside range of contexts that may be accepted--Matter arguable, not evident beyond doubt--Court not concluding claim must inexorably fail--Appropriate question of scope, application of Charter, s. 7 be determined by Court on merits, taking into account full factual context--Defendant arguing purpose of Pension Act, s. 111, Crown Liability and Proceedings Act, s. 9 to prevent Crown from paying twice for same injury--Whether plaintiff's Charter claim barred by operation of above statutory provisions which prima facie restrict possible causes of action against Crown--Operation of statutory bar dependent on facts of case, nature of Charter claim, leaving it open to plaintiff to argue inviolability of particular Charter claims asserted--Not plain, obvious statutory bars invoked by Crown will, of necessity, restrict access to remedy for Charter violations alleged by plaintiff--Although psychological, affective in nature, plaintiff's injuries allegedly distinct, unrelated to disorder, resulting uniquely from conduct of superiors--Inappropriate to evaluate distinctiveness, if any, of injuries plaintiff claimed to have resulted from treatment, in context of motion--Pension awards neither complete nor conclusive in that regard--Plaintiff's claims not merely aggravation of post-traumatic stress disorder--Not plain, obvious plaintiff has already been awarded pension in relation to injuries claimed--Finding also applicable to Crown Liability and Proceedings Act, s. 9 on which Crown relied to bar plaintiff's claim in tort--Motion dismissed--Federal Court Rules, 1998, SOR/98-106, r. 221--Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 9--Pension Act, R.S.C., 1985, c. P-6, s. 111--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.