ARMED FORCES
Plaintiff member of Canadian Forces reserve for 13 years when, injured in shoulder, suffering from post-traumatic stress syndrome (PTSS), requested, obtained release from Armed Forces—Even though receiving full disability pension for injuries and illness, applicant filing grievance, prior to release, in unsuccessful attempt to obtain additional monetary compensation, now relying on Canadian Charter of Rights and Freedoms, s. 24 to claim monetary relief—Crown contending Chief of Staff’s decision on grievance has effect of res judicata; alternatively arguing cause of action statute barred—Plaintiff declared unfit to participate in missions abroad owing to shoulder injury in 1996—Declared nevertheless fit to participate as photographer on peacekeeping mission in Haiti in 1997—There, plaintiff assigned to operation to retrieve bodies from foundered boat, thus aggravating shoulder injury, setting off PTSS—PTSS not properly treated upon plaintiff’s return to Canada in October 1997—Considering himself victim of harassment in order to drive him from Armed Forces, to deprive him of medical care entitled to, plaintiff obtaining release on January 23, 1998—Plaintiff submitting defendant breached right to security of person, contrary to principles of fundamental justice (Charter, s. 7)—Prior to release, plaintiff filing grievance under National Defence Act, s. 29—Grievance based on same facts as those relied on in action—Chief of Staff deciding grievance, granting some remedies requested by plaintiff but denying request for monetary compensation on basis no statutory, regulatory authority to do so—Adding benefits represent final compensation and, according to Crown Liability and Proceedings Act, s. 9 and Pensions Act, s. 111 not possible both to receive pension, sue Canadian Forces after being injured—Action dismissed for abuse of process— Regarding issue of res judicata, no doubt Chief of Staff had requisite jurisdiction to determine, in context of claim for redress or grievance, officer’s right to receive monetary compensation, including compensation in form of relief under Charter, s. 24—Neither plaintiff’s grievance nor Chief of Staff’s decision mentioning Charter—Application of Dumont v. Canada, [2004] 3 F.C.R. 338—Decision on grievance not having effect of res judicata or issue estoppel in regard to fundamental rights and questions in application of Charter to circumstances of action—Issue estoppel applying factual, mixed fact and law, determinations reached by Chief of Staff, improbability of determination favourable to plaintiff not in itself justifying dismissal of action—Apart from characteri-zation of Crown’s impugned acts as breach of Charter, s. 7 right, reference to Charter, s. 24(1) as legal basis for derogation from Crown Liability Act, s. 9, fundamental right giving rise to present litigation exactly same as that submitted to, determined by Chief of Staff—Harm to be remedied, nature of relief requested, facts and circumstances resulting in harm, strictly same—In absence of exceptional circumstances justifying it, allowing plaintiff to proceed in Court on cause of action that should have been presented in context of preceding grievance tantamount to allowing party to engage in “serial pleading” or to split case, very essence of abuse of process— Vaughan v. Canada, [2005] 1 S.C.R. 146, involving labour relations, applicable here—Exhaustiveness of regulation of military life going hand-in-hand with exhaustiveness of dispute resolution process—Effectiveness of overall dispute resolution process under National Defence Act impugned if courts defer only in strictly labour relations matters—Curial deference applying with equal force, therefore, to proceedings pertaining to grievance procedure provided by National Defence Act—Allowing action to proceed infringing principles of finality of judgments, undermining integrity, efficiency of comprehensive and complete dispute resolution procedure provided by National Defence Act—Furthermore, given findings of fact of Chief of Staff, number of allegations in statement of claim could not be maintained, allowing serious doubts to persist about chances of success of action—In circumstances, no justification for adverse effect of allowing action on administration of justice—Financial Administration Act, R.S.C., 1985, c. F-11—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. 7, 24—National Defence Act, R.S.C., 1985, c. 5, s. 29 (as am. by R.S.C., 1985) (1st Supp.), c. 31, s. 43; S.C. 1998, c. 35, s. 7)—Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 9 (as am. by S.C. 2001, c. 4, s. 39(F))—Pension Act, R.S.C., 1985, c. P-6, s. 111 (as am. by S.C. 2000, c. 34, s. 42)—Public Service Staff Relations Act, R.S.C., 1985, c. P-35.
Bernath v. Canada (T-1683-02, 2005 FC 1232, Tabib P., order dated 9/9/05, 32 pp.)