Armed Forces
Appeal from Prothonotary’s dismissal of action for damages for breach of Charter rights, declaration of wrongful release, striking amended statement of claim on ground grievance process incomplete—Respondent, in denying applicant’s assertion of facts, relying on affidavit, supporting evidence, outlining Canadian Armed Forces (CAF) grievance procedure, status of applicant’s six grievances—Under Federal Courts Rules, SOR/98-106, r. 221(2), Court will not hear evidence on motion to strike under r. 221(1)(a)—However, application to strike pleading on basis cause of action beyond jurisdiction of Court may be supported by affidavit evidence—Court will also not refuse affidavit evidence showing essential allegation of claim false—No restriction on receiving affidavit evidence on motion based on other grounds set out in r. 221(1)—Affidavit admissible as exception to exclusion in r. 221(2) i.e. to support respondent’s contentions that essential allegation of claim false or that action constituting abuse of process—Cases consistently holding CAF grievance procedure must be exhausted before turning to courts for redress—Canada v. Bernath, 2007 FCA 400, 290 D.L.R. (4th) 357 distinguished—Manuge v. Canada, [2009] 1 F.C.R. 416 not supporting proposition action for damages for breach of Charter rights could proceed without resorting to judicial review—Action premature—Appeal dismissed.
Moodie v. Canada (Minister of National Defence) (T-1248-07, 2008 FC 1233, Mosley J., order dated November 6, 2008, 16 pp.)