ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 685-2011

DATE: 20131206

BETWEEN:

Caroline Mary Sarah O’Farrell, Richard John Cameron, Connor John O’Farrell Cameron and Kelly Patricia O’Farrell Cameron

– and –

Attorney General of Canada, Kevin Baillie, Gary Beam, Sylvain Berthiaume, Luc Boivin, Greg Chiarot, Francois Duguay, Marc Godue, Mike Herchuk, Cory Hoehn, David Kopp, Christine Mackie Windover, Gerry Ogilvie and Michael Robblee

Peter Cronyn for Plaintiffs

Christine A. Powell for Defendant Christine Mackie Windover

Michael Roach for Defendant Attorney General of Canada and Luc BoivinPeter Hagen for Defendant Francois Duguay Donald F. Morris for Defendants Gerry Ogilvie and Michel Robblee

HEARD: September 3, 2013

REASONS FOR JUDGMENT

Charbonneau, j.

[1] The defendant, The Attorney General of Canada, seeks an order staying this action until the plaintiff, Caroline Mary Sarah O’Farrell (“the plaintiff”), applies in good faith for a pension pursuant to the Pension Act in respect of the injuries for which she claims compensation in the statement of claim and a decision respecting her entitlement to a pension is confirmed by the Veterans Review and Appeal Board.

[2] All the defendants support the Attorney General. The defendants Mackie Windover, Francois Duguay, Gerry Ogilvie and Michael Robblee have in addition filed factums providing additional submissions in favour of a stay. All of their submissions are variations on the same theme.

The facts

[3] The plaintiff is a Staff Sergeant with the Royal Canadian Mounted Police (“RCMP”). The other plaintiffs bring derivative claims under the Family Law Act.

[4] In the present action, the plaintiff claims damages for battery, assault, sexual assault, intentional infliction of mental suffering, breach of contract, misfeasance in public office and breach of Charter rights.

[5] She alleges that while a member of the RCMP’s Musical Ride her colleagues on the RCMP Musical Ride assaulted her, sexually assaulted her and harassed her. She alleges that the RCMP failed to take appropriate action when she complained about the alleged abuse by her colleagues. As a consequence of the abuse, she alleges that she developed post-traumatic stress disorder and suffers from serious psychological distress.

[6] The plaintiff alleges that she was the victim of this serious physical, verbal and psychological abuse by the defendants over a period of many years.

[7] For the purpose of this motion, the allegations found in the statement of claim are deemed to be true.

The Position of the Defendants

[8] The Attorney General of Canada submits that Section 111 of the Pension Act (PA) applies to this action. Section 111 subsections 1 and 2 of the PA provide as follows:

111(1) In this section, “action means any action or other proceeding brought by or on behalf of

(a) a member of the forces,

(b) a person to whom this Act applies by virtue of any enactment incorporation this Act by reference, or

(c) a survivor or a surviving child, parent, brother or sister of a person referred to in paragraph (a) or (b) who is deceased

against Her Majesty, or against any officer, servant or agent of Her Majesty, in which damages are claimed in respect of an injury or disease or aggravation thereof resulting in disability or death.

111 (2) An action that is not barred by virtue of section 9 of the Crown Liability and Proceedings Act shall, on application, be stayed until

(a) an application for a pension in respect of the same disability or death has been made and pursued in good faith by or on behalf of the person by whom, or on whose behalf, the action was brought; and

(b) a decision to the effect that no pension may be paid to or in respect of that person in respect of the same disability or death has been confirmed by an appeal panel of the Veterans Review and Appeal Board in accordance with the Veterans Review and Appeal Board Act.

[9] Section 9 of the Crown Liability and Proceedings Act, RSC 1985 c.C-50 (CLPA) provides as follows:

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 he claim is made.

[10] The Attorney General of Canada therefore submits in paragraph 12 of its factum:

The Plaintiff is entitled to apply for a disability pension under the Pension Act because she claims that she suffers PTSD as a result of events which occurred at her workplace. The action should therefore be stayed until after she has applied for a pension and the Veterans Review and Appeal Board has made a final determination as to her entitlement.

[11] The defendants Ogilvie and Robblee adopt the position of the Attorney General of Canada. They additionally plead that Section 11 of the Interpretation Act requires that the word “shall” be construed as imperative and that therefore the Court is bound to stay the action.

[12] The defendant Duguay, while adopting the points made by the Attorney General of Canada, also submits that the acts alleged against him all fall within the scope of his normal duties and are not alleged to have been malicious. Therefore it is clear that he is entitled to the benefits of the provisions of Section 9 of the CLPA barring the action. If the plaintiff is ultimately found to be entitled to a pension for any of the acts alleged against the defendants, the action against Duguay will be barred Section 9 of the CLPA.

[13] The defendant Windover also pleads that it is essential that a determination of the entitlement of the plaintiff to a pension be made before an action can be properly adjudicated against her. The issue of the entitlement to a pension is an issue beyond the scope of this Court’s jurisdiction but must be determined in advance in order for the Court to be able to quantify the damages that are actually attributable to the specific abuse alleged against her should this action proceed.

The Plaintiffs’ Position

[14] The plaintiff submits that the stay of proceedings contemplated by section 111 of the PA is designed to prevent a plaintiff being able to avoid section 9 of the CLPA by simply refusing to apply for a pension. However, the present claim is not one barred by s. 9 of the CLPA and therefore s. 111 of the PA should not apply to this case. The combined effect of s. 9 of the CLPA and s. 111 of the PA serve to prohibit an action against the Crown in certain circumstances by replacing it with a comprehensive no fault disability scheme. The purpose of the stay provisions in section 111 is to avoid double recovery for the same injury.

[15] The plaintiff submits that the present claim is not subject to s. 111 of the PA. A no-fault liability scheme is not one that can adequately and completely deal with her claim. The allegations on which is based her action, which are deemed admitted for the purpose of this motion, reveal a multitude of incidents of assault and sexual assault over an extended period of time. The full effect of this abuse was only discovered by the plaintiff after many years. It is in the public interest that such allegations of intentional assaults over an extensive period be the subject of a full court hearing.

[16] In order to give a purposive interpretation to the provisions of s. 9 of the CLPA and s. 111 of the PA, the plaintiff submits that s. 111 must be strictly interpreted against the defendants. As the PA does not provide real compensation for the type of intentional misconduct alleged by the plaintiff in her claim, her claim is not one which should be found to be barred by s. 9 of the CLPA. Therefore the action should not be stayed.

ISSUES

[17] Should this action be stayed on the basis of s. 111 of the PA.

Analysis

[18] The starting point of any analysis in this area of the law must be the decision of the Supreme Court of Canada in Sarvanis v. Canada 2002 SCC 28, [2002] 1 SCR 921. At paragraph 24 Justice Iacobucci first addresses the reach that must be given to section 9 of the CLPA by quoting the now recognized golden rule of statutory interpretation enunciated by Professor Elmer Driedger:

“Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

[19] Then at paragraph 25 Justice Iacobucci states:

“With this approach in mind, I take note that s. 9 refers to pensions and compensations that are made in respect of “death, injury, damage or loss”. The fact that the broad phrase “in respect of” is tied to this enumeration of events is of some significance. The ordinary sense of this list of words indicates that they are specific events to which liability could but for the operation of s. 9, attach.”

[20] And finally at paragraphs 28 and 29 he concludes as follows:

“In my view, the language in s. 9 of the Crown Liability and Proceedings Act, though broad, nonetheless requires that such a pension or compensation paid or payable as will bar an action against the Crown be made on the same factual basis as the action thereby barred. In other words, s. 9 reflects the sensible desire of Parliament to prevent double recovery for the same claim where the government is liable for misconduct but has already made a payment in respect thereof. That is to say, the section does not require that the pension of payment be in consideration of settlement of the relevant event, only that it be on the specific basis of the occurrence of that event that the payment is made.”

“This breadth is necessary to ensure that there is no Crown liability under ancillary heads of damages for an event already compensated. That is, a suit only claiming for pain and suffering, or for loss of enjoyment of life, could not be entertained in light of a pension falling within the purview of s. 9 merely because the claimed head of damages did not match the apparent head of damages compensated for in that pension. All damages arising out of the incident which entitles the person to a pension will be subsumed under s. 9, so long as that pension or compensation is given “in respect of”, or on the same basis as, the identical death, injury, damage or loss.”

[21] The question then becomes whether a pension or compensation is payable “on the same basis as” the injury, damage or loss for which damages are claimed by the plaintiff in this action. Section 32 of the Royal Canadian Mounted Police Superannuation Act (RCMPSA) provides for pension benefits in respect of injury or death on service. That section provides as follows:

“Subject to this part and the regulations, an award in accordance with the Pension Act shall be granted to or in respect of the following persons if the injury or disease – or the aggravation of the injury or disease – resulting in the disability or death in respect of which the application for the award is made arose out or, or was directly connected with, the person’s service in the Force: […]

(b) Any person who served in the Force at any time after March 31, 1960 as a contributor under Part 1 of this Act and who has suffered a disability, either before or after that time, or has died.”

[22] The PA defines the word disability as follows:

“…the loss or lessening of the power to will and to do any normal mental or physical act.”

[23] The plaintiff submits that a purposive interpretation of section 9 would reveal that s. 9 does not contemplate the type of compensation the present action warrants. It is not the intended purpose of s. 9 to bar these types of actions.

[24] The plaintiff relies on the Court of Appeal decision in Young v. McCreary 2001 4456 (ON CA), [2001], 53 O. R. (3d) 257. At paragraph 11, writing for the Court, Sharpe J. A., after finding that s. 9 must be given a purposive interpretation, indicates at paragraphs 11 and 12:

“I cannot accept the proposition that s. 9 should be applied to shield Crown servants from liability without regard to the capacity in which they were acting at the time of the alleged wrong. (…), it is my view that if the appellant can establish that the respondents were acting maliciously or outside the scope of the Corrections Canada procedure when bringing their complaints against her, she would not be barred by s. 9 from proceeding with her claim. It would be inconsistent with established principles of interpretation to hold that s. 9 applies to all actions against Crown servants without regard to the capacity in which they were acting at the time of the alleged wrong.”

In Canada (National Harbours Board) v. Langelier (1968), [1969] (S.C.C.) at p. 74, Martland J. referred to the well-recognized principle, laid down by the Privy Council in Nireaha Tamaki v. Baker, [1901] A.C. 561 (New Zealand P.C.) and by the Supreme Court of Canada in Rattenbury v. British Columbia (Land Settlement Board) (1928), 1928 42 (SCC), [1929] S.C.R. 52 (S.C.C.) that despite Crown immunity, “there was always recourse in the common law courts in respect of acts done, without legal justification, by an agent of the Crown”. While there appears to be no case dealing with this issue under s. 9, an analogy may be drawn to the interpretation accorded provisions similar to s. 22(2) of the Crown Liability and Proceedings Act, providing that no relief or order may be granted against a servant of the Crown if it cannot be made against the Crown itself. The protective statutory bar against injunctive relief does not apply where the crown servant abuses his or her apparent powers or acts without authority: see MacLean v. Ontario (Liquor Licence Board) (1975, 1975 513 (ON SC), 9 O.R. (2d) 597 (Ont. Div. Ct.); Hogg and Monahan, Liability of the Crown, 3rd ed (Carswell: Toronto, 2000) at pp. 32-4.

[25] For the purpose of this motion the allegations in the statement of claim are assumed to be true. The plaintiff alleges that the series of intentional acts of assaults perpetrated against her by the various defendants were clearly either done maliciously, outside of the defendants’ scope of duty, or in some cases while abusing his or her powers.

[26] Applying the purposive approach to the interpretation of s. 9 dictated by the Court of Appeal in Young v. McCreary it would seem to be reasonable to find that the claim put forward by the plaintiff in her statement of claim was not intended by Parliament to be covered by s. 9. Therefore, s. 9 would not bar this claim and no stay would be required by s. 111. I agree with the plaintiff that a purposive interpretation would give due weight to the need to prosecute flagrant abuses of this type in open court. The public interest would be enhanced if such serious allegations are fully determined on their merits.

[27] On the other hand, this strict interpretation of s. 9 would appear to be in conflict with Parliament’s intention to prevent double recovery. It is hard to imagine how it could ever be possible to decide what portion of a plaintiff’s recovery would be subject to a PA compensation and which part would not be.

[28] In Brownhall v. Canada 2007 31749 (ON SCDC), [2007] 87 O.R. (3d) 130 the Divisional Court considered the decision of the Court of Appeal in Young v. McCreary (supra) Swinton J. J. for the majority wrote:

In the present case, I note that the claims are not solely based on intentional acts, as there is a claim in negligence as well. More importantly, the language of s. 9 of the CLPA does not restrict its application to negligent acts. Nor does the Young case stand for the proposition that s. 9 does not bar an action based on intentional acts. The Court of Appeal in that case was dealing with the extent to which Crown servants are immunized from civil liability by s. 9, holding that it may not protect them where they were acting outside the scope of their employment. The case does not say that s. 9 is inapplicable to intentional torts.

In the present case, the respondent has sued only the Crown and not the individual officers. The liability of the Crown pursuant to s. 3 of the CLPA turns on whether there was a tort committed by a servant of the Crown, whether intentional or not, in the course of employment.

[29] The plaintiff in Brownhall made allegations very similar to the present case. There were allegations of assault and sexual assault inflicted on the plaintiff by his fellow soldiers while deployed in Afghanistan. There was also allegation of mismanagement of his complaints by his commander. The plaintiff had applied and received a disability pension pursuant to the PA.

[30] The majority of the Divisional Court in Brownhall concluded that all the events, be they assaults or misfeasance on which the action was based, were covered by the scope of section 9 of the CLPA.

[31] The decision of the Court of Appeal in Dionne v. Canada (2002), 2002 49481 (ON SC), 59 O.R. (3d) 566 held that, where the action for damages is for “an injury resulting in disability arising out of the person’s service in the Force” (as provided by section 32 of the RCMPSA) that action is barred by section 9 of the CLPA and subject to be stayed by virtue of s. 111(2) of the PA.

[32] I conclude that to accept the plaintiff’s submissions would be to interpret the relevant statutes contrary to clear intention of Parliament. The words of the statute are unambiguous. The plaintiff’s action is for damages for disease and injury she suffered arising or directly connected to her service in the RCMP. Whether she is entitled to compensation pursuant to the PA is not for this Court to decide. Her action must therefore await that determination.

[33] For all of these reasons, the motion is allowed and the action is stayed until the plaintiff’s entitlement to a pension is finally decided.

[34] Costs should follow the event. I will however allow counsel to provide me with brief written reasons on the subject of costs should they be not able to agree. The defendants are to provide theirs within 20 days and plaintiffs to have 15 days to answer. Five days for a reply, if necessary.

Charbonneau, J.

Released: December 6, 2013

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Caroline Mary Sarah O’Farrell, Richard John Cameron, Connor John O’Farrell Cameron and Kelly Patricia O’Farrell Cameron

– and –

Attorney General of Canada, Kevin Baillie, Gary Beam, Sylvain Berthiaume, Luc Boivin, Greg Chiarot, Francois Duguay, Marc Godue, Mike Herchuk, Cory Hoehn, David Kopp, Christine Mackie Windover, Gerry Ogilvie and Michael Robblee

REASONS FOR JUDGMENT

Charbonneau, J.

Released: December 6, 2013