Digests

Duplessis v. Canada

T-294-00

2001 FCT 1038, Lemieux J.

21/9/01

9 pp.

Appeal from Prothonotary's dismissal of motion to strike out amended statement of claim--Since question of whether to strike out amended statement of claim determinative of action, appeal proceeded de novo--Applicable test under Federal Court Rules, 1998, r. 221(1)(a) (non-existence of reasonable cause of action) whether plain, obvious case beyond doubt, without any chance of success--In respect of other grounds provided in r. 221, test whether ground so clearly immaterial, frivolous, embarrassing or abusive that obviously forlorn, futile--Crown argued Prothonotary erred in finding not plain, obvious claim barred by Crown Liability and Proceedings Act, s. 9, Pension Act, s. 111--Submitted Prothonotary erred in finding plaintiff's disability pension not paid in respect of injury, damage or loss in respect of which plaintiff based action against Crown; action under Charter, ss. 7, 15 not barred by same provisions--Pension Act, s. 11 prohibiting action against Crown in respect of any injury, disease resulting in disability where pension is or may be awarded under Act--Crown Liability and Proceedings Act, s. 9 prohibiting proceedings against Crown in respect of claim if pension paid, payable in respect of injury, damage, loss in respect of which claim made--Plaintiff served in Canadian military in peacekeeping missions in Croatia, Bosnia where experienced traumatic conditions--After return to Canada suffered from variety of stress related symptoms--Despite repeated requests for assistance, received no debriefing, counselling, treatment, assistance--Plaintiff claiming superiors' response to continued deteriorating health, efforts to obtain counselling, discriminatory, based on Afro-Canadian descent, psychological nature of injuries--Demoted, supervisory responsibilities removed based on determination disabled--Plaintiff claiming decision made in bad faith, as pretext to get rid of him--Eventually diagnosed with post-traumatic stress disorder (PTSD)--Appeal dismissed--Crown not clearing high hurdle of establishing plaintiff's case doomed to failure, has no chance of success--(1) Arguably plaintiff's claim not for compensation on account of PTDS injury, or any continuation of symptoms associated with it upon return to Canada, but for other harms suffered resulting in damages which have nothing to do with pension receiving, and arising out of negligence of Crown's servants in failing to address condition; for breach of fiduciary, other statutory duties in failing to provide assistance; for racial discrimination and discrimination on account of mental disability under Charter; and for bad faith in discharge--(2) Pension Act, s. 111 and Crown Liability and Proceedings Act, s. 9 requiring factual foundation, nexus between pension paid, injury or aggravation--One purpose of both provisions to prevent double recovery--Factual foundation missing, nexus not established--(3) How far statutes such as Pension Act, Crown Liability and Proceedings Act can operate to blunt Charter, s. 24 claims not subject of settled law--Federal Court Rules, 1998, SOR/98-106, r. 221(1)(a)--Pension Act, R.S.C., 1985, c. P-6, s. 111--Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 9--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], ss. 7, 15, 24.