PRACTICE |
Judgments and Orders |
Summary Judgment |
Aussant v. Canada
T-903-95
Dawson J.
5/5/00
21 pp.
Motion for summary judgment dismissing claim--In 1978 plaintiff Pierre Aussant, constable with RCMP, injured when police car in which sitting, issuing ticket to traffic violator, hit from behind--Injuries significant, apparently permanent--Plaintiffs asserting physical, psychological injuries in substantial measure contributed to, caused by wrongful, intentional acts of RCMP, agency of defendant eg. requests for payment for, authorization of treatment continually refused, request for transfer to more favourable climate refused--Alleging due to deterioration of medical condition, defendant's failure to accommodate disability, Pierre Aussant forced to leave RCMP, treat himself as having been constructively dismissed, effective January 8, 1996--As result, lost benefit of 12 best years of employment, pension contributions, actuarial loss resulting from inability to participate in pension plan for those years--Wife claiming loss of husband's care, guidance, companionship, and for care of husband throughout relevant period--Pierre Aussant receiving pension under Pension Act retroactive to day departed RCMP--Motion for judgment based solely on ground both Crown Liability Act, s. 9, Pension Act, s. 111 stating no action, other proceeding lying against Crown in respect of any injury if pension paid in respect of injury--Royal Canadian Mounted Police Superannuation Act, s. 32(1) providing award in accordance with Pension Act shall be granted to person disabled as result of injury directly connected with service--Motion dismissed--Plaintiffs' claims lie in both contract, tort--Federal Court Rules, 1998, rr. 213 to 219 applicable to motions for summary judgment--Test for whether claim should be dismissed on summary basis, whether case, interpreted in context, so doubtful deserves no further consideration: Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.)--McMillan v. Canada (Minister of Citizenship and Immigration) (1996), 108 F.T.R. 32 (F.C.T.D.) suggesting law unsettled as to whether RCMP officer having contractual relationship with force--McLean v. Canada (1999), 164 F.T.R. 208 (F.C.T.D.), wherein held Crown Liability and Proceedings Act, Part I dealing only with claims in tort, applied--Claim in contract not dismissed on summary basis based on Crown Liability Act, s. 9--Royal Canadian Mounted Police Superannuation Act, s. 32(2) providing all provisions of Pension Act not inconsistent with this Part applying with such modifications as circumstances require in respect of any claim under this Part--Pension Act, s. 111 applying to claim because not inconsistent with anything in Royal Canadian Mounted Police Act, Part II--S. 111 prohibiting action against Crown "in respect of any injury or disease or aggravation thereof resulting in disability or death in any case"--Not clear claim for constructive dismissal lies "in respect of any injury or disease or aggravation thereof"--That conduct alleged to constitute breach of employment contract arising out of injury, and alleged refusal by defendant to accept it, may be found to be irrelevant to determination of whether or not claim "in respect of any injury or disease" within scope of Pension Act, s. 111--For this reason and because of uncertainty in case law as to whether RCMP officer having contractual relationship with force, action based on breach of contract not dismissed summarily--Even though Crown Liability Act, s. 9, Pension Act, s. 111 may bar claim in tort, judgment should not be given on summary basis dismissing claims sounding in tort where claim in contract not dismissed on summary basis because of difficulty in severing portions of claim brought in contract from those brought in tort--Much of misconduct alleged may give rise to concurrent liability in contract and tort, and even if claims sounding in tort dismissed, significant issues will remain to be tried--In all of circumstances unjust, of little practical benefit to grant summary judgment dismissing claim in tort--To extent wife's claim derivative claim, should not be dismissed either--Federal Court Rules, 1998, SOR/98-106, rr. 213-219--Crown Liability and Proceeding Act, R.S.C., 1985, c. C-50, s. 9--Pension Act, R.S.C., 1985, c. P-6, s. 111--Royal Canadian Mounted Police Superannuation Act, R.S.C., 1985, c. R-11, s. 32.