Loiselle v. Canada ( Attorney General )
T-1320-98
Hargrave P.
16/11/98
11 pp.
Application for judicial review of decision of Director of Military Careers, Department of National Defence applicant subject to restricted release policy-Crown submitting application should be struck out because applicant not exhausting internal military grievance procedures-On enlistment applicant signed French document indicating, among other things, obligatory service following graduation-English version indicating pilot obligated to serve minimum of five years regardless of period of subsidization-French version not containing such obligation-Applicant graduating from Royal Military College in May 1992, receiving pilot's wings in May 1994-1997 request for voluntary release denied on ground under restricted release policy until May 5, 1999-As result of ministerial inquiry, Assistant Deputy Minister for Personnel for Department of National Defence denying early release on November 25, 1997 on behalf of Minister of National Defence-July 24, 1997 military memorandum providing only Director of Military Careers in National Defence Headquarters (NDHQ) authorized to approve exception to restricted release policies-On May 28, 1998 Director of Military Careers, NDHQ formally denying applicant's request for release-Applicant not engaging military grievance procedure-Although Federal Court Rules, 1998 not specifically providing procedure to strike out application, may be possible to use gap rule (r. 4), and r. 221 to strike out pleadings-Even if doubt existence of "gap" in Federal Court Rules, still possible to strike out application in exceptional instance, where application so clearly improper as to be without any possibility of success-Whether applicant having adequate alternative remedy to resolve grievance within structured military grievance procedure-Motion dismissed-Military grievance procedure could be viewed as meaningless since, even if worked way up grievance procedure, applicant would come to Director of Military Careers, only person able to approve exceptions to restricted release policy, then to Minister of National Defence, who has already responded through delegate-Gayler v. Canada (Director Personnel Careers Administration Other Ranks, National Defence Headquarters), [1995] 1 F.C. 801 (T.D.), wherein MacKay J. deciding as military grievance procedure would be without meaning, applicant not having adequate alternative remedy, applied-Applicant's case not clearly improper, without any possibility of success-Federal Court Rules, 1998, SOR/98-106, rr. 4, 221.