ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-53340
DATE: 20121231

BETWEEN:

COLONEL J.G. BERNARD OUELLETTE Plaintiff – and – ATTORNEY GENERAL OF CANADA as represented by THE DEPARTMENT OF NATIONAL DEFENCE, MAJOR OKSANA KUZYSHYN, MAJOR NANCY PETERS, LIEUTENANT-COMMANDER LUC TREMBLAY, and MAJOR SUSAN GRAY Defendants

Michel Drapeau, and Joshua M. Juneau, for the Plaintiff

Paul Battin, and Alexander Gay, for the Defendants

HEARD: December 9, 2012.

T.D. RAY, J

Background

[ 1 ] The defendants move under Rules 21.01(a), 21.01(3)(a)(d) and 25.11 of the Rules of Civil Procedure, to strike out the plaintiff’s Statement of Claim, (or the relevant portions thereof) for want of jurisdiction, abuse of process, or that the pleading is frivolous and vexatious. The defendants advance three general grounds for argument:

a. The pursuit of this claim by the plaintiff outside the applicable and comprehensive statutory schemes governing military grievances and military disability pensions is an abuse of process;

b. The Crown Liability and Proceedings Act (“CLPA “) provides a statutory bar to the plaintiff’s claim since the statute precludes civil actions where a military pension is payable; and while the Plaintiff has not applied for a disability pension, the damages that he claims relate to injuries that he sustained, albeit psychological injuries, while on a mission abroad; and

c. The Plaintiff failed to serve a proper libel notice as required by section 5 of the Libel and Slander Act [1] in respect of alleged publications and broadcasts in Ontario and is therefore precluded in law from pursuing these claims.

[ 2 ] The plaintiff is a serving officer in the Canadian Armed Forces, and was at the time that his cause of action arose Commander of the CF Task Force in Port-au-Prince Haiti and Chief of Staff, United Nations Stabilization Mission in Haiti (MINUSTAH). The plaintiff pleads that in March 2010, the defendants falsely and maliciously alleged that he was having an improper relationship contrary to CF regulations. As a consequence, he was removed from command and was returned to Ottawa. His removal from command and the fact of an improper relationship as the basis for his removal were communicated to the press for broadcast and publication. The plaintiff’s Amended Statement of Claim was issued January 12, 2012. In it, he claims damages in excess of $6,000,000.00 as well as a declaration that the Department of National Defence (DND) be prevented from further publication of the defamatory words, an apology, and an order that his employment record be corrected to withdraw all references to the defamatory statements. The plaintiff pleads that he initiated grievance proceedings on November 4, 2010, regarding his removal from command. He further pleads that on “December 29, 2011, the Chair of the Canadian Forces Grievance Board, Mr. Bruno Hamel after a thorough and independent investigation, concluded that:

“ I recommended that the CDS set aside the decision to

• Remove the grievor from command as Comd TF PaP;

• Remove the grievor from his position as COS MINUSTAH; and

• Repatriate the grievor …

I recommend that the CDS offer apologies to the grievor for the manner in which he was treated and removed from command … ” ”

[ 3 ] From the Statement of Claim it is apparent that the defamatory statements fall into two categories. [2] The first category is those statements communicated by email by the individual defendants who at all material times were the plaintiff’s subordinates, to DND headquarters alleging the plaintiff was engaged in an improper relationship in contravention of CF regulations. The second category is those defamatory statements published and broadcast by the media following a review within the command structure, a decision that the plaintiff had contravened CF regulations, and notification by DND in accordance with CF regulations to the media that the plaintiff had been removed from command and the reasons therefore. The parts of the Statement of Claim pleading this second category are paragraphs 4(a), (b), (c), 15, and 58(j). The plaintiff only sued the individuals and DND, not the media.

[ 4 ] While the defendants have not delivered a Statement of Defence, requests to admit have been exchanged. Affidavits were filed by the plaintiff on this motion.

[ 5 ] A moving party must establish that it is plain and obvious that a claim cannot succeed to strike a claim under rule 21. [3]

Abuse of Process

[ 6 ] It is a long standing principle that a plaintiff may not have resort to the courts, except for judicial review, for relief arising out of an employment relationship where a dispute resolution or arbitration process is available. The courts have held that to permit court proceedings to operate in competition is to undermine efficient labour relations [4] . This principle has been held to apply with equal force to the dispute resolution procedure under the National Defence Act and Regulations. [5] In fact, an individual must exhaust the resolution mechanism provided in the grievance procedure since its scope provides an adequate remedy where employment is at issue, before redress in the courts can be addressed. [6] There is no doubt factually that there is an available grievance procedure, in fact the plaintiff submitted a grievance and successfully obtained through that grievance process a recommendation to the Chief of the Defence Staff that, if accepted, would make moot a considerable part of the relief the plaintiff seeks in this action. The plaintiff’s cause of action against all of the defendants as described in the Amended Statement of Claim clearly arises out of the plaintiff’s employment. The defamatory statements allegedly made by the individual defendants (members of the Armed Forces) was within the employment context since it was alleged that the plaintiff was in breach of a regulation governing his conduct as an officer in the Canadian Armed Forces.

[ 7 ] Since this action was started after Mr. Hamel’s recommendation of December 2, 2011, noted above, it would appear that the difference between the two proceedings is that damages were sought in the action. Although, presumably any lost income would inferentially be part of the grievance if he were reinstated.

[ 8 ] The plaintiff’s claim that he was defamed by the individual defendants, that he was improperly removed from his command, that his service in the Canadian Armed Forces had been in jeopardy, that DND ought not to have concluded that he was in breach of the regulations, and therefore ought not to have advised the media – were all matters appropriate to the grievance procedure - even though he contends that he did not place the defamatory statements in issue at his grievance. The test is not what he placed in issue, but what the grievance process was capable of addressing and adjudicating. I am satisfied that the alleged conduct of the individual defendants was in the context of the plaintiff’s and their employment; [7] and ought to have been addressed (and still can be) through the grievance process. If the plaintiff is found by the Grievance Board to be entitled to damages but damages are not available through the grievance process, then that would only be known after the process has been exhausted.

[ 9 ] I am satisfied that, so far as this ground is concerned, that this action is premature, and it is beyond a doubt that the action cannot be sustained in the face of the grievance procedure, and that the grievance procedure must be exhausted before access to the courts may be available to the plaintiff.

Crown Liability and Proceedings Act As a Bar

[ 10 ] The defendants rely on the provision in the CLPA [8] that bars an action for damages where a disability pension is available. The principle contended is that a person who feels aggrieved may not sue the Crown for damages where they have recourse to available pension compensation. The defendants contend that the claimed damages for defamation fall within disability damages that the plaintiff could claim under the available pension provisions since they would fall under damages sustained while in theatre.

[ 11 ] The Canadian Forces Members and Veterans Re-establishment and Compensation Act, [9] permits the Minister to pay a disability award for a service related injury. Section 92 of the Act provides that where the CLPA does not bar an action for damages for a service related injury, on application, the action shall be stayed until an application has been made under the Act to determine entitlement and quantum of damages.

[ 12 ] Both statutes provide for a bar to double recovery by either barring the action (under the CLPA) or by staying the action pending determination of the entitlement to an award for a “service related injury”. Of course that begs the question as to whether damages for defamation made in an employment context would fall “in respect of”… “service related injury”. [10] While at first blush, damages for loss of reputation would seem well outside “service related injury”, if the damages are sustained in the employment context as in Giorno v Pappas [11] , then it is at least arguable that the damages may be service related. The provision for a stay in the Canadian Forces Members and Veterans Re-establishment and Compensation Act is an acknowledgement that the tribunal established under the Act has the experience in dealing with service related injuries to make that determination which, by operation of the structure of the Act, would require deference from the courts.

[ 13 ] I am not satisfied that the CLPA clearly bars the plaintiff’s claim. However, dealing only with this ground of complaint, I am satisfied that a stay of this action pending the Minister’s decision would not work an injustice on the plaintiff, since his rights would be preserved.

Failure to Comply With Section 5, Libel and Slander Act .

[ 14 ] The defendants say that the plaintiff’s failure to serve the defendants with notice constitutes non-compliance with the Libel and Slander Act , and therefore is fatal.

[ 15 ] The section requires that a plaintiff before commencing an action for “ libel in a newspaper or in a broadcast”, must give notice within 6 weeks of knowledge of the alleged libel. No notice was given. While no media were sued, the plaintiff has pleaded that the defamatory words were both published and broadcast, thereby triggering the notice requirement. Notice is required to be given to non-media defendants. [12] Failure to comply with the requirement to give notice, as provided for in section 5 , has been held to be fatal to an action for damages. [13]

[ 16 ] The emails were private communications within DND, as was the lecture material. These were not broadcasts. [14] They fall outside the provisions of the Libel and Slander Act .

[ 17 ] I am satisfied therefore that references to publishing and broadcasts in the plaintiff’s Amended Statement of Claim cannot survive. [15] Accordingly, paragraphs 4(a), (b), (c), 15, and 58(j) are struck.

Conclusion

[ 18 ] In summary, the action is dismissed on the ground of abuse of process since the factual frame-work giving rise to the plaintiff’s claim is to be adjudicated within the DND grievance process. Alternatively, the action is stayed pending determination of the plaintiff’s entitlement to an award for “a service related injury”. Finally, in the further alternative, paragraphs 4(a), (b), (c), 15, and 58(j) of the Amended Statement of Claim are struck by reason of non-compliance with the notice requirements of the Libel and Slander Act .

[ 19 ] Both parties filed costs outlines at the conclusion of argument. If they cannot agree on costs, they may make written submissions of two pages or less within 20 days with a further 5 days for reply.

Honourable Justice Timothy Ray

Released: December 31, 2012

COURT FILE NO.: 12-53340
DATE: 20121231

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: COLONEL J.G. BERNARD OUELLETTE Plaintiff – and – ATTORNEY GENERAL OF CANADA as represented by THE DEPARTMENT OF NATIONAL DEFENCE, MAJOR OKSANA KUZYSHYN, MAJOR NANCY PETERS, LIEUTENANT-COMMANDER LUC TREMBLAY, and MAJOR SUSAN GRAY Defendants REASONS FOR DECISION Honourable Justice Timothy Ray

Released: December 31, 2012

[1] R.S.O. 1990, chapter L. 12, section 5

[2] Weiss v Sawyer , (2002), 2002 45064 (ON CA) , 61 O.R. (3d) 526 , 217 D.L.R. (4 th ) 129 (OCA)

[3] Hunt v. Carey Canada Inc, 1990 90 (SCC) , [1990] 2 S.C.R. 959 , at paragraph18.

[4] Vaughan v Canada , 2005 SCC 11 , paragraph 2, and 37 . (Binnie, J)

[5] Bernath v. Canada 2005 FC 1232 , paragraph 66

[6] Sandiford v. Canada , 2007 FC 225 at paragraph 28 .

[7] Giorno v. Pappas , 1999 1161 (ON CA) , [1999] O.J. No. 168 (OCA) (Goudge, JA)

[8] Crown Liability and Proceedings Act , C, 1985, c. C-50, section 9; 2001, c 4, s. 39(F) :

9. No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made .

[9] S.C. 2005, c.21, section 45 .

[10] “in respect of” in the CLPA is to be given a very wide meaning: Sarvanis v. Canada , 2002 SCC 28 , paragraphs 28- 30 .

[11] Note 7.

[12] Janssen-Ortho Inc. v. Amgen Canada Inc. 2005 19660 (ON CA) , [2005] O.J. No. 2265 , 256 D.L.R. (4 th ) 407 at paragraphs 34 - 40 (OCA)

[13] Siddiqui v. Canadian Broadcasting Corp . , 2000 16920 (ON CA) , 50 O.R. (3d) 607 , [2000] O.J. No. 3638 , at paragraph 10 . (OCA)

[14] Note 2.

[15] TPG Technology Consulting Ltd. v. Canada (Industry Canada), 2012 ONCA 87 (OCA)