Overview

[1] The plaintiff, Beverly Kleckner, holds the rank of Captain in the Canadian Forces and serves in the Health Services Branch. She has been employed as a Health Care Administrator in the Health Services Group headquarters since 2008. She joined the Canadian Forces as a Pharmacy Officer in 1994.

[2] On February 15, 2013, the plaintiff brought an urgent motion in this court seeking a declaration that a referral from the Canadian Forces dated November 29, 2012 directing her to attend a psychosocial assessment was of no force and effect, and further for a declaration that she had the right to choose her own health care provider for the purpose of any medical treatment or assessment that she might be required to undergo by the Canadian Forces, including the psychosocial assessment which was scheduled for February 27, 2013. She also sought an interim declaration that she and her spouse, also a Canadian Forces member, have the right to be free from any reprisal by Canadian Forces officials as a result of bringing forth the motion and the civil action accompanying the motion. It should be noted that the spouse of the plaintiff is not a party to this action and therefore no orders can be made respecting him.

[3] On February 26, 2013, the urgent motion was heard on an interim basis by Ratushny J., who adjourned the motion to March 26, 2013. Ratushny J. made certain interim orders, including that the assessment scheduled for February 27, 2013 be cancelled and that, pending the hearing of the motion, the defendant not take any action whatsoever in respect of, or arising from, the referral dated November 29, 2012 that might affect the plaintiff’s medical category. Costs of $3,000.00 dollars were awarded to the plaintiff.

[4] The urgent motion was heard by me on March 26, 2013 and April 9, 2013. At the conclusion of those two days of hearings, it was believed that the parties were capable of resolving their differences and the motion was adjourned sine die pending settlement. A resolution of the issues did not ultimately occur and the motion was brought back and further argued before me on November 14 and 15, 2013.

[5] In her statement of claim the plaintiff seeks the same relief as is being sought in the motion. In addition, her civil claim also seeks a declaration that her rights under section 7 of the Canadian Charter of Rights and Freedoms were violated; general damages in the amount of $250,000 for misfeasances in public office and breach of fiduciary duty; aggravated damages in the amount of $100,000 for the tort and Charter violations; punitive damages in the amount of $1,000,000, together with pre-judgment and post-judgment interests; and costs on a substantial indemnity basis.

[6] The motion before me is an application for an injunction and therefore must meet the tripartite test set out in RJR–MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R 311. Briefly stated, the test requires that the plaintiff must demonstrate that there is a serious question to be tried; second, that irreparable harm will occur to the plaintiff if the relief is not granted; and third, that an assessment of the balance of inconvenience to the parties favours the applicant. With respect to the first part of the test, namely whether there is a serious question to be tried, the Supreme Court determined that once satisfied that the application is neither vexatious nor frivolous, “the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable”: RJR–MacDonald Inc., at para. 50. However, it is important to bear in mind what the court stated at para. 51, notably:

Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits. The first arises when the result of the interlocutory motion will in effect amount to a final determination of the action. This will be the case either when the right which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial.

[7] I conclude that this case falls within both exceptions.

[8] The defendant submits that the entire claim should be dismissed for want of jurisdiction as there is an adequate alternative remedy available to the plaintiff through the Canadian Forces statutory grievance procedure. As at this date, the plaintiff has not grieved her treatment by the Canadian Forces. In fact, she is technically out of time to file a grievance. Nonetheless, the defendant has undertaken to accept and process a grievance, should the plaintiff choose to advance one. As well, the defendant has agreed that any grievance submitted by the plaintiff will be referred to the Grievance Board established under the National Defence Act, R.S.C., 1985, c. N-5.

Factual background

[9] Prior to her enlistment, the plaintiff graduated from the Pharmacy program at the University of Saskatchewan and worked as a trained civilian pharmacist from 1984 to 1994. She joined the Canadian Forces as a Pharmacy Officer in 1994.

[10] During the year 2007, the plaintiff was serving as an untrained Intelligence Officer in the Canadian Royal Military Air Force. She wished to become a pilot. She was asked to attend the Canadian Forces Trenton Health Clinic in relation to her application where she met with Wing Surgeon Dr. Christopher Hayman.

[11] Dr. Hayman requested that the plaintiff undergo a psychological assessment prior to him approving her for aircrew training. He stated in memos to the plaintiff:

My decision to refer you for a psychological assessment was based upon my previous contacts with you as a care provider and the information that you have relayed to me with respect to your mechanisms for dealing with stressful situations. Until such time as you are evaluated by the psychologist, I will be unable to sign off your aircrew medical.

I was reluctant to approve this given my concerns about your ability to deal with other people under stressful situations as you had related to me in prior encounters. To ensure that I had an unbiased picture of your mental health, I requested that you undergo a psychological assessment. Personality dysfunction in the cockpit can lead to poor decision making and in a worst case scenario, loss of life.

[12] Dr. Hayman referred the plaintiff to a third party psychologist, Dr. Jeremy Mills. The plaintiff met with Dr. Mills on April 10, 2007 and undertook certain psychometric testing but on April 12, 2007 refused to proceed with the psychological assessment. She told Dr. Mills that she would not consent to either the assessment or the release of any of her medical information. On the basis of that refusal, Dr. Hayman recommended that the plaintiff receive a designation as being unfit for aircrew, an “A7 finding”.

[13] The plaintiff was somewhat distraught with this decision and sent numerous emails to Canadian Forces personnel requesting clarification of her status and the issue of informed consent. She was concerned that any report generated by a psychologist retained by the Canadian Forces might be used against her. Dr. Hayman met with the plaintiff again and attempted to answer her numerous questions. In his subsequent memo to her he stated:

Today, I told you that, were you to agree to complete your interview and release your original assessment results, that I would reconsider the A7 finding. You stated that you were unable to provide consent to your original psychologist because you felt uneasy with him; however, you had gone out and paid another psychologist to provide you with an assessment, which you would release to me.

Unfortunately, as I related to you, I had already investigated the possibility of retesting with Dr. Conroy (psychologist). She informed me that the tests lose validity with repeated exposure. She also disclosed that adequate information exists on the internet to allow someone who does enough research, to provide misleading results on the MMPI. Accordingly, your privately obtained assessment is not considered valid under these circumstances.

... [B]y declining a psychological assessment ... I continue to recommend the decision for A7.

As I suggested, if you believe that you have not been treated fairly, you may pursue a complaint through the Surgeon General’s complaint system.

[14] The plaintiff had retained a private psychologist, Dr. John Platt, and received an assessment from him and upon which she relies, even today, to support the fact that she is psychologically stable. At page 6 of Dr. Platt’s assessment he states the following:

Thus her findings on the basic clinical scales of this measure speak to an individual who is quite stable and normal in her functioning and without significant emotional or personality discrepancies. This is within the context of her having been quite positive in her self–description though with most other validity indicators and further calculated validity scales or ratios being within acceptable limits.

With respect to further content and supplemental scales of the above measure, all of her findings were within or below the Normal range with the exception of three scales that fell around one standard deviation above the Normal range. One of these speaks to positive health status that appears to be consistent with her self‑reported status in interview. The other two relate to aggressive tendencies such as include (sic) impatience, annoyance or stubbornness, while the second relates to pushing limits. In the context of her other findings, these latter two results are considered within the realm of an individual who is intent on moving matters forward and not being contained too much by external expectancies or perceived unnecessary limits. Thus her findings on these overall sets of scales, taking into account some features that are amplified though still viewed positively, are generally consistent with those of a stable, forward-thinking and forward-moving individual. [Emphasis added.]

[15] Dr. Platt concluded that his findings were generally positive in regards to the plaintiff being considered medically fit for the pilot training program.

[16] Bearing in mind that the plaintiff personally selected Dr. Platt to conduct the psychological assessment and that Dr. Platt was not a psychologist trained in the field of assessing whether individuals were suitable to become pilots, the findings that the plaintiff had aggressive tendencies and exhibited impatience, annoyance, and stubbornness might cause one concern before permitting such a person to undertake pilot training. Not surprisingly, Dr. Hayman did not accept Dr. Platt’s report as being sufficient for his purposes of determining the plaintiff’s psychological wellbeing in the context of her application to undergo pilot training.

[17] In 2008, the plaintiff learned that the Health Services Branch of the Canadian Forces was accepting applications for Health Care Administrators. She submitted an application for transfer to that branch, and was accepted.

[18] In October 2011, the plaintiff, together with all of her colleagues, were informed by their supervisor at the Health Services Branch that they were required to take the Periodic Health Assessment. The Periodic Health Assessment is a tool used by the Canadian Forces to ensure deployability of its members. Section 33 of the National Defence Act, provides that all full-time members of the Canadian Forces shall at all times be deployable. This assessment, which is usually performed at regular intervals and normally every two years for those over 40 years of age, involves a physical medical examination in order to offer preventative health care and assesses occupational fitness. The plaintiff is over 50 and had not undergone a Periodic Health assessment for five years.

[19] The plaintiff wished to schedule her Periodic Health Assessment appointment with Dr. Boyer, a doctor outside of her Care Delivery Unit (“CDU” 3), and sought permission from Base Surgeon Lieutenant Commander Greg Haley to see Dr. Boyer. Lieutenant Commander Haley denied the plaintiff’s request on the basis that personal preference alone could not justify the assignment of a doctor outside of her Care Delivery Unit. When the plaintiff questioned Lieutenant Commander Haley’s refusal to let her see Dr. Boyer, Lieutenant Commander Haley offered to forward the plaintiff’s request to his supervisor, the Area Surgeon Lieutenant Colonel Bilodeau. The plaintiff accepted this offer.

[20] Lieutenant Commander Haley’s reasons for denying a change in CDUs were explained to Lieutenant Colonel Bilodeau in the following memo:

Sir,

I regularly get formal requests to change CDUs. These fall under four categories:

patient-clinician conflict,
physician expertise with patient’s condition,
language or gender preference, and
personal preference (word of mouth)

I generally approve 1 and 2 in the interest of achieving better care for the patient. Likewise, most “group 3” language preferences are approved. Gender preferences can generally be met within each CDU and therefore it is rarely necessary to change CDUs.

However, I always reject 4 as it runs in direct opposition to the Clinic Model. It also risks overburdening our more popular physicians, with detriment to their wait-times and their flexibility within the CDU. If these requests are routinely approved, they will only increase. Everyone would like to choose their physician.

[21] Lieutenant Colonel Bilodeau replied to Lieutenant Commander Haley in these words: “I support your position. I don’t think we should make an exception for this case unless other arguments are provided.”

[22] In the course of a detailed and lengthy trail of emails between Captain Kleckner and her superiors, it was pointed out to her that her own CDU had two female civilian clinicians, Dr. Mundi and Dr. Lebel, and one male civilian clinician, Dr. O’Neill. In an email to Captain Kleckner from Primary Care Nurse Heather Sey, it is stated:

Dr. Mundi and Dr. Lebel should be able to meet your needs. If you still wish to put in a request to transfer CDUs I can do so. The process is that the CDU puts in a request for you to change CDUs. The request then goes to the Base Surgeon. The Base Surgeon is the one who approves the request to transfer CDUs.

[23] Captain Kleckner continued to insist on seeing Dr. Boyer.

[24] The fundamental argument that had been advanced by Captain Kleckner in her numerous emails with respect to seeing Dr. Boyer, was that it would “alleviate my white coat syndrome and mistrust and feeling of intimidation by our system.” In response to that email, Lieutenant Commander Haley contacted the plaintiff’s supervisor, Lieutenant Commander Thomson. Lieutenant Commander Thomson met with the plaintiff and informed her that she was being insubordinate. He told her that he had read the email and believed it was offensive.

[25] Thereafter the plaintiff began to have email exchanges with Lieutenant Colonel Bilodeau directly, who continued to assure her that there was nothing out of the ordinary in the manner in which the plaintiff was being treated. In effect, he told her to simply relax and take the tests mandated by the Canadian Forces assessment process. An objective reading of this email traffic between the plaintiff and Lieutenant Colonel Bilodeau leaves one with the impression that Captain Kleckner was being unusually testy, defensive, suspicious, and anxious about her Periodic Health Assessment, which she was required to undertake.

[26] Finally, the plaintiff agreed to be seen by Dr. Christina Mundi, one of the female civilian clinicians within her CDU.

[27] The Assessment comprises two parts. The first part is conducted by a medical technician where blood is drawn and routine tests taken. That part of the plaintiff’s Assessment was scheduled for June 29, 2012. Part two of the test involves a meeting between the patient and the physician at which the results of the tests are discussed. That part of the plaintiff’s Assessment was scheduled for October 11, 2012.

[28] Prior to attending for the first part of the testing Captain Kleckner asked the receptionist at CDU 3 to add a note to her file: “Should any testing beyond hearing, vision, cholesterol screening be required, I wish to grant ONLY WRITTEN consent [sic].” Captain Kleckner attended her appointment on June 29, 2012. Visual and auditory examinations were conducted, vaccines for diphtheria, acellular pertussis, and tetanus were administered, and a lab technician drew her blood. Captain Kleckner looked at the paperwork and noted that her blood would be tested for both cholesterol and glucose. Specifically, the blood was to be tested for glucose-6-phosphate dehydrogenase deficiency (G6PD). Captain Kleckner was aware that G6PD deficiency tests are relevant to Canadian Forces members being deployed to areas in the world where a specific anti malaria medication may be required. Captain Kleckner did not want her blood to be tested for G6PD deficiency.

[29] Thus began another round of emails from Captain Kleckner to Canadian Forces personnel, including complaining that her note requiring her consent was not on her file and that she was not likely to be deployed to a malaria stricken zone.

[30] She was informed that the ordering of this specific test was in line with Canadian Forces policies and guidelines and that all new recruits must undergo the test, as well as those members, such as herself, who were not tested upon enlistment. Captain Kleckner began contacting other Canadian Forces Bases and eventually it became clear that glucose tests were being administered as a matter of course in Ottawa but not at other Canadian Forces bases. Captain Kleckner complained that the test should not be administered unless one were in fact being deployed to a malaria stricken zone. In an email to one of her superiors, Captain Kleckner pointed out that attempting to administer tests without allowing Canadian Forces members to provide consent “may amount to battery.” This exchange of emails continued through the months of July and August 2012. When she raised these concerns with Lieutenant Colonel Bilodeau, he simply ordered that the glucose test be cancelled in Captain Kleckner’s case.

[31] Captain Kleckner sent a further email to Lieutenant Colonel Bilodeau asking for reconsideration of her request to access external care. Lieutenant Colonel Bilodeau replied that “military fitness determination is a specialized medical exercise that only well trained clinicians can do.”

[32] On September 14, 2012, Captain Kleckner was informed that Dr. Mundi had reviewed her file and believed that she would be better served by a military health care practitioner, rather than a civilian practitioner assigned to the military.

[33] After much further emailing back and forth, including telephone calls with Lieutenant Colonel Bilodeau, an appointment with Warrant Officer Pearson was scheduled for November 14, 2012 in order to complete the second stage of Captain Kleckner’s Periodic Health Assessment. In the course of these exchanges Lieutenant Colonel Bilodeau, in relation to the mandating of a psychological assessment of Captain Kleckner, stated that “there is no reason for you to be evaluated differently than any other CF member.” Lieutenant Colonel Bilodeau informed Captain Kleckner that mental health assessments were routinely ordered, in particular as a result of the Canadian Forces engagement in Afghanistan.

[34] At the meeting of November 14, 2012, Warrant Officer Pearson stated that he found that Captain Kleckner had “unresolved issues” dating from 2007 and that he was referring her for a psychosocial assessment. She asked to book an appointment with Warrant Officer Pearson’s supervising physician, Dr. Shane O’Neill. The appointment was booked. Warrant Officer Pearson’s note reads as follows:

We discussed the finding of her air crew medical in 2007. Member questioned the necessity of a MH [mental health] assessment. I recommended that the member have a MH assessment done in order to clarify any outstanding issues from 2007 and to ensure there was no contraindications to the member’s deployability.

We discussed this plan at length, particularly in the context of informed consent, operational deployability and fitness of service. Member has f/u booked with Dr. O’Neill 29 November to discuss this further.

During our discussion the member became mildly agitated and wanted to know who had directed me to ask these questions. I advised the member that I would discuss her case with my team leader and would then recommend a medical category. She indicated that she would also discuss with Dr. O’Neill during her appointment. I was advised later by our PCN that the member had made further enquires of her as to who had directed me to ask certain questions.

[35] In his sworn affidavit filed in these proceedings Warrant Officer Pearson emphatically denies that he was directed by anyone to ask any specific questions of Captain Kleckner. He stated:

I can safely say I have never discussed a patient with Lieutenant Colonel Bilodeau. The only thing regarding Capt. Kleckner that I knew in advance of meeting her was that she declined to see another practitioner but was willing to see me.

I was never directed by anyone, military or otherwise, to refer Capt. Kleckner for an occupational mental health assessment.

As a result of the unaddressed mental health issues, I recommended Capt. Kleckner’s medical category be changed to G4T6 04T6. The applicable Medical Employment Limitations (“MEL”) state that the member requires medical follow-up more frequently than every 6 months and that the member is unfit for the military operational environment.

This medical category continues for as long as Capt. Kleckner’s mental health issues remain unaddressed. If the mental health assessment determines that Capt. Kleckner is fit for the military operational environment, then I expect the temporary medical employment limitations will be lifted. If the assessment determines that Capt. Kleckner must be treated for mental health issues, then the category remains until she is successfully treated.

I understand that my recommendation to change Capt. Kleckner’s medical category was reviewed and confirmed by Dr. Shane O’Neill in the capacity of Reviewing Medical Officer. [Emphasis added.]

[36] In her affidavit Captain Kleckner states:

At this point, I started to suspect that WO Pearson was being influenced by officers higher in the change of command, who were acting in bad faith to impose an unlawful psychosocial assessment on me without justification or my consent. I felt completely jeopardized because at this point my medical status had been arbitrarily degraded, and now if I refuse to undergo the testing, this could reflectively result in my dismissal from the military.

[37] Captain Kleckner attended on Dr. O’Neill on December 4, 2012. On her own admission she carried a digital recorder with her to the appointment. She recorded the entire conversation between herself and Dr. O’Neill. She did not inform Dr. O’Neill that she was recording the conversation. During the course of oral argument I expressed the view that while Captain Kleckner’s action in recording the private conversation with Dr. O’Neill was not illegal, it was nonetheless highly unprofessional. In his affidavit filed in these proceedings, upon which he was never cross-examined, Dr. O’Neill stated at para. 4:

I was not directed by the Commanding Officer of Canadian Forces Health Services Centre Ottawa, Lieutenant-Colonel Marc Bilodeau or Base Surgeon, Canadian Forces Health Services Centre Ottawa, Lieutenant-Commander Greg Haley in the management of her case.

[38] In the course of his meeting with Captain Kleckner, Dr. O’Neill informed her that he purposely did not review her file. He informed Captain Kleckner that Warrant Officer Pearson asked for an assessment “to keep everything clean because of the emails and all this” and that Captain Kleckner was “on people’s radar” and that she was “a pain in the ass”. When one reads the entire exchange between Captain Kleckner and Dr. O’Neill, I believe that it can fairly be stated that Dr. O’Neill was acting honestly, responsibly and sympathetically throughout his interaction with Captain Kleckner.

[39] The interview also reveals that Captain Kleckner expressed the view that the drawing of blood for the purpose of a G6PD test constituted “battery”, would have been contrary to her consent, and that the Canadian Forces would not want that fact to be seen in the newspapers. I regard that portion of the interview as constituting an implied threat to Dr. O’Neill that unless he complied with Captain Kleckner’s wishes she might take her complaints to the media.

[40] The actual referral for psychological assessment is dated November 29, 2012 and cites “major concerns” with Captain Kleckner’s “operational deployability.” The order was signed by Warrant Officer Pearson and co-signed by Dr. O’Neill. In his report dated December 4, 2012, Dr. O’Neill confirmed that a mental health assessment was mandated in Captain Kleckner’s case to ensure her capability for deployment. He explained that she was “on the radar” because of her constant questioning of heath care procedures employed by the Canadian Forces. In her affidavit Captain Kleckner states at para. 116:

At this point, I simply cannot imagine being forced to undergo unnecessary psychosocial testing. This whole process has threatened my sense of security, privacy and autonomy. I have suffered and endured much harm since 2007. I was unable to pursue a career as a pilot, I was treated unfairly and this has had profound consequences for me and my career. I have coped and tolerated it nonetheless because of the fear and intimidation that I will be deemed insubordinate and my career will be even more negatively impacted.

[41] At para. 117 Captain Kleckner states:

To allow testing that requires me to relinquish control over my mind and essentially submit to the extraction of information which is both unnecessary, unlawful and private is humiliating, degrading and harms my very dignity and security as a person. The same way a patient will not be expected to submit to unnecessary physical procedure, I feel I should not be forced to undergo an unnecessary psychological procedure.

[42] As a result of the psychological assessment directed by Warrant Officer Pearson and co‑signed by Dr. Shane O’Neill, an initial assessment of Captain Kleckner was scheduled for February 27, 2013. Prior to that date these proceedings were initiated and, as noted above, the referral was cancelled by the interim order of Ratushny J.

The Jurisdictional Issue

[43] Whether Captain Kleckner must first avail herself of the grievance procedure made available under the National Defence Act was the subject of lengthy submissions. Cutting to the core of these arguments, Ms. Gerami, counsel for the plaintiff, argues that because Captain Kleckner is seeking damages pursuant to the Charter of Rights and Freedoms and because the Chief of Defence Staff does not have the power to award damages, this court should assume jurisdiction over Captain Kleckner’s claim. On behalf of the Attorney General of Canada, Ms. Marchildon submits that the weight of authority requires Captain Kleckner to exhaust the remedies available pursuant to the grievance procedures set out in the National Defence Act before seeking damages in this court or seeking judicial review in the Federal Court of Canada. Ms. Marchildon submits that it is premature to assume that the grievance procedure will not be capable of satisfying Captain Kleckner’s complaints and that in any event, due to recent changes in legislation, the Chief of Defence Staff now has the power to award “ex gratia” payments in appropriate cases.

[44] I am persuaded, on the basis of the authorities cited to me, that Captain Kleckner must exhaust the remedies available to her pursuant to the statutory grievance process set out in the National Defence Act before advancing her claim in this court.

[45] As a starting point, in Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146, our Supreme Court cautioned inferior courts to be mindful of the importance that they not jeopardize the processes set out in legislative schemes for the redress of complaints by permitting parallel access to the courts. In that case, the Supreme Court was dealing with disputes arising under the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (“PSSRA”). Binnie J. stated at para. 2: “... the courts should generally in my view, as a matter of discretion, decline to get involved except on the limited basis of judicial review.” In that case, the plaintiff had brought action in the Federal Court alleging negligence in the manner in which he had been treated in an employment context. Justice Binnie found, on behalf of the majority of the Court, that the plaintiff was bound to follow the statutory scheme for the redress of complaints set out in the PSSRA and that he could not access the court by “dressing it up as a “negligence” action”: para. 42.

[46] The National Defence Act is highly comprehensive. It is abundantly obvious that the plaintiff’s complaints with respect to her treatment by members of the Canadian Forces directly engage the grievance process provided for under the National Defence Act. The fact that she frames her complaint as a breach of her section 7 rights under the Charter of Rights and Freedoms does not alter the fundamental character of her complaints. Her complaints are so inextricably connected to the procedures and structures of the Canadian Forces that this court would be at a decided disadvantage in attempting to divine what might constitute appropriate or inappropriate conduct, given the circumstances of the plaintiff. The specialized expertise of those charged with resolving and deciding complaints by members of the Canadian Forces is necessary in this case.

[47] Given the elaborate nature of the grievance mechanism under the National Defence Act, the Chief of Staff has the requisite authority and jurisdiction to apply the Charter, to determine whether Charter rights have been breached, and, given the power to make ex gratia payments in appropriate circumstances, to compensate individuals whose Charter rights might have been infringed.

[48] In Pilon v. Canada, [1996] F.C.J. No. 1200, 119 F.T.R. 269, at para. 8 (F.C.T.D.), Wetston J. held that s. 29 of the National Defence Act:

... provides for a redress of grievance procedure wherein members of the military may have any issue adjudicated which deals with "personal oppression, injustice or other ill-treatment" or "any other cause for grievance". This Court has held that where such an expansive resolution mechanism exists the complainant is required to pursue a remedy through this statutory mechanism before turning to the civil courts for relief (Gallant v. The Queen in Right of Canada (1978), 1978 2084 (FC), 91 D.L.R. (3d) 695, and Jones v. Her Majesty the Queen and Major D.R. Harris, (23 November 1994), T-236-94, [1994] F.C.J. No. 1742.

[49] In Bernath v. Canada, 2007 FC 104, 321 F.T.R. 1, Noël J. held that the plaintiff was entitled to maintain his action in the Federal Court on the basis that he was claiming damages due to Charter breaches and that the provisions of the National Defence Act did not provide for the granting of monetary compensation. Noël J. held that in such circumstances the civilian court may intervene.

[50] Justice Noël’s decision was upheld on appeal: see 2007 FCA 400, [2007] F.C.J. No. 1678. Importantly, Décary J.A. stated at para. 24:

... the respondent should understand that this is but a procedural and preliminary victory. He will eventually have to identify precisely the principle of fundamental justice, if any, on which his position is based. The judgment of this court in Prentice v. Canada, 2005 FCA 395, clearly demonstrates that it is not an easy task.

[51] The decision of Noël J. and that of the Court of Appeal dealt with the specific point whether the Chief of Defence Staff could award damages for Charter breaches. Noël J. held that there was no power to do so and the Federal Court of Appeal agreed. In my view, the terrain has now changed since the Chief of Defence Staff has power to make ex gratia payments in appropriate circumstances, including for the infringement of Charter rights. More importantly, Captain Kleckner has not yet availed herself of the grievance procedure set out in the National Defence Act and it is entirely premature to assess how her claims might be resolved.

[52] In Moodie v. Canada (Minister of National Defence), 2008 FC 1233, [2008] F.C.J. No. 1601, a case following Bernath, Mosley J. dealt with a claim that is not dissimilar to that of Captain Kleckner. In that case, the plaintiff was seeking a declaration that he was wrongly released from the Canadian Forces, for an order restoring him to office, together with damages for $4,300,000 for breach of his right to security of the person as guaranteed by s. 7 of the Charter of Rights and Freedoms, breach of equality rights under section 15 of the Charter, loss of reputation and defamation, intentional infliction of mental anguish, negligence, and breach of fiduciary duty. The plaintiff had filed grievances with respect to his allegations but claimed that the respondent had either blocked his access to the grievance procedure or unreasonably refused to process and dispose of his grievances in an attempt to frustrate him from getting redress.

[53] Mosley J. grappled with the issue of whether the plaintiff was required to exhaust the Canadian Forces grievance procedure before having access to the Federal Court. Justice Mosley found that the defendant’s unchallenged evidence was that the plaintiff’s grievances were in fact being processed under the statutory scheme and that he was not being blocked from access to the scheme. Justice Mosley then went on to describe the grievance procedure created under the National Defence Act, employing the phrasing of Jones v. Canada, [1994] 87 F.T.R. 190, as being the “broadest possible” and accommodating of “any and every wording, phrasing, expression of injustice, unfairness, discrimination,” and as being “exhaustively comprehensive.” At para. 28, Mosley J. stated:

It has been consistently held that the CAF grievance procedure constitutes an adequate alternative remedy that must be exhausted before an individual can turn to the Courts for redress: Jones, above; Sandiford v. Canada, 2007 FC 225, 309 F.T.R. 233; Gallant v. Canada (1978), 1978 2084 (FC), 91 D.L.R. (3d) 695, [1978] F.C.J. No. 1122 (F.C.T.D.); Pilon v. Canada (1996), 119 F.T.R. 269 (T.D.), 23 C.C.E.L. (2d) 267; Villeneuve v. Canada (1997), 130 F.T.R. 134 (T.D.), 71 A.C.W.S. (3d) 669; Haswell v. Canada (Attorney General) (1998), 56 O.T.C. 143 (Gen. Div.), 77 A.C.W.S. (3d) 541 aff'd. (1998), 1998 17720 (ON CA), 116 O.A.C. 395 (C.A.); Anderson v. Canada (Armed Forces) (C.A.) (1996), 1996 3848 (FCA), [1997] 1 F.C. 273, 141 D.L.R. (4th) 54; and Chisholm v. Canada (Attorney General), 2003 FCT 387, 231 F.T.R. 155.

[54] Mosley J. referred to Vaughan v. Canada, cited earlier in these reasons, which held that regard must be had to the facts giving rise to the dispute rather than the legal characterization of the wrong to determine whether there is an adequate alternative remedy. In all but the most unusual circumstances, the court should decline jurisdiction and defer to statutory grievance schemes.

[55] At para. 30, Mosley J. found that the Canadian Forces grievance procedure was particularly well suited to address the issues which Mr. Moodie raised and that the factual context was not altered by the plaintiff’s characterization of the incidents as being breaches of his Charter rights.

[56] In distinguishing the decision of Noël J. as confirmed by the Federal Court of Appeal in Bernath, Mosley J. stated, at para. 37:

In my view, Bernath is distinguishable from the case at bar as the grievance procedure in that instance had been completed but was unable to provide the remedy which the plaintiff was seeking. Here, the applicant filed his action for damages prior to the final determination or completion of the grievance process. There has been no finding of error in any decision or action of the CAF respecting the applicant's career and no determination that a remedy is unavailable. This is not a case in which the grievance procedure has been found to be inadequate to the task but rather one in which the applicant seeks to circumvent that process.

[57] In my opinion, this is exactly what Captain Kleckner is attempting to do in bringing action in this court.

[58] Mosley J. also referred to the decision of the Federal Court of Appeal in Prentice v. Canada (Royal Canadian Mounted Police), 2005 FCA 395, [2006] 3 F.C.R. 135, wherein the court held that the action in that case was a disguised grievance of discrimination, struck out the Statement of Claim, and dismissed the action. At para. 76, the Court stated:

... a plaintiff who wishes to bring action against the Crown in civil liability for damages must first exercise the remedies he or she is offered by administrative law. Section 24 of the Charter is not a life preserver for rescuing parties who fail to exercise the remedies that they have under the “ordinary” laws. It is not the role of the Federal Court to do the things that the statutes assign to arbitrators and ministers. It is quite simply not this Court’s function to decide, in an action brought under the Charter, whether a grievance or a claim for a disability pension is justified, let alone to determine the amount of damages or of the pension that arbitrators or ministers could have granted if the matter had been put to them.

[59] Mosley J. found that Mr. Moodie’s action was a disguised grievance and discrimination complaint and that he had failed to exhaust the remedies available to him under the statutory grievance procedure. It was plain and obvious that the action was premature pending the completion of those proceedings.

[60] The decision of Mosley J. was upheld by the Federal Court of Appeal in Moodie v. Canada (Minister of National Defence), 2010 FCA 6, [2010] F.C.J. No. 35. The Court of Appeal held that there was ample and cogent evidence to support Justice Mosley’s finding that the appellant’s action was a disguised grievance and discrimination complaint, and consequently an attempt to circumvent the grievance process. The true substance of the appellant’s claim was not the alleged Charter breaches but rather the alleged incidents which arose directly out of the appellant’s employment with the Canadian Forces. The Court found that Mosley J. had properly applied the law when he looked to the true nature of the dispute rather than to the appellant’s characterization of the alleged wrong. The Court noted that in dismissing the appeal, Mosley J. reasserted the possibility for the appellant to pursue his grievances, to seek a judicial review of the resulting decisions, and, if necessary, to renew his action for damages.

[61] Recently, in this court, in the case of Ouellette v. Attorney General of Canada, 2012 ONSC 7375, [2012] O.J. No. 6179, Ray J. held that a defamation claim brought against the Canadian Forces was premature and that the plaintiff could not access the court until he had exhausted the grievance procedures. Citing Vaughan, Bernath, and Sandiford v. Canada, 2007 FC 225, 309 F.T.R. 233, Justice Ray stated, at para. 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. This principle has been held to apply with equal force to the dispute resolution procedure under the National Defence Act and Regulations. 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. [Footnotes omitted.]

[62] The law in Ontario is consistent on this point. As recently restated by Swinton J. in Ravikovich v. College of Physicians and Surgeons, 2010 ONSC 5194, [2010] O.J. No. 4091 at para. 4 (Div. Ct.):

This Court has consistently refused to engage in a review of the decisions of administrative tribunals until a final decision has been reached, absent extraordinary circumstances. As this Court said in Lala v. College of Physiotherapists of Ontario, [2003] O.J. No. 5062 (Div. Ct.) at para. 2:

In the absence of exceptional circumstances, it is preferable to allow administrative proceedings to run their full course before the tribunal and to consider the legal issues arising from the proceeding including procedural matters against the backdrop of a full record and a reasoned decision of the tribunal.

[63] The principle that adequate alternative remedies must be exhausted before one is entitled to seek judicial review seems to have been robustly applied in recent years. Very recently, the Ontario Court of Appeal overturned a Divisional Court decision for its failure to respect this principle: Toth Equity Limited v. Ottawa (City), 2011 ONCA 372, 283 O.A.C. 33, at paras. 33-35:

The Divisional Court held that even if Toth had the right to appeal City Council’s “non-decision” to the ARB, Toth was not required to exhaust that right before pursuing its application for judicial review.

With respect, the Divisional Court erred in principle in so concluding. It is an important principle of administrative law that, absent exceptional circumstances, a party must exhaust any available adequate alternative remedy within the administrative process before pursuing an application for judicial review: see Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 S.C.R. 561.

The Canadian courts have enforced this general principle vigorously. In the recent decision of C. B. Powell Ltd. v. Canada (Border Services Agency), 2010 FCA 61, 2010 FCA 61, at paras. 31-32, Stratas J.A. of the Federal Court of Appeal, usefully describes the principle and its rationale.

[31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court. Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.

[32] This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway… Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. .. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [citations omitted]

[64] Similarly, in Sears Canada Inc. v. Davis Inquest (Coroner of) (1997), 102 O.A.C. 60 (Div. Ct.), Adams J. noted at para. 11 that:

…this court has repeatedly said that it will not intervene during the course of proceedings of an inferior tribunal except in exceptional circumstances … This approach is based on the reason that the work of these important bodies would otherwise become irreparably fragmented and delayed with both single and multiple trips “up the judicial ladder”…. The exception to this procedural deference is where an application for judicial review raises serious concerns, which, if they materialized, would likely result in a fundamental failing of justice. [Emphasis added.]

[65] Regarding the jurisdiction of administrative tribunals to consider and apply the Charter, including Charter remedies, the following excerpts from R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at paras. 20-21, are instructive:

We do not have one Charter for the courts and another for administrative tribunals (Cooper v. Canada (Human Rights Commission), 1996 152 (SCC), [1996] 3 S.C.R. 854, per McLachlin J. (in dissent), at para. 70; Dunedin; Douglas College; Martin). This truism is reflected in this Court’s recognition that the principles governing remedial jurisdiction under the Charter apply to both courts and administrative tribunals. It is also reflected in the jurisprudence flowing from Mills and the Cuddy Chicks trilogy according to which, with rare exceptions, administrative tribunals with the authority to apply the law have the jurisdiction to apply the Charter to the issues that arise in the proper exercise of their statutory functions.

The jurisprudential evolution has resulted in this Court’s acceptance not only of the proposition that expert tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction, but also that in exercising their statutory discretion, they must comply with the Charter.

[66] Applying these principles of law to the case before me, I am firmly of the view that the complaints of Captain Kleckner arise exclusively from her employment in the Canadian Forces. Her complaints with respect to unfair treatment by her superiors are exactly the sorts of complaints that the grievance mechanism created by the National Defence Act is specially armed to deal with. I find that Captain Kleckner clothed her complaints in Charter language for the singular objective of attempting to avoid the Canadian Forces grievance procedure. There are no exceptional circumstances that would take her case out of the normal grievance process.

[67] In the course of oral argument, Ms. Gerami submitted that Captain Kleckner’s case was exceptional, and that she was akin to a “whistle-blower”, and would be unable to achieve justice by submitting to the Canadian Forces grievance procedure: Vaughan, at paras. 19 and 20. The “whistle-blower” cases, such as Pleau v. Canada (Attorney General), 1999 NSCA 159, 181 N.S.R. (2d) 356 and Guenette v. Canada (Attorney General) (2002), 2002 45012 (ON CA), 60 O.R. (3d) 601 (C.A.), are easily distinguishable from this case. Captain Kleckner has criticized her superiors and accused them of conspiring against her. If Captain Kleckner engages in the grievance procedure, these individuals would not be the decision-makers, as is the case in “whistle-blower” cases. The National Defence Act Grievance Board is independent. It is the lack of an independent decision-maker that affords extraordinary circumstances. There are no extraordinary circumstances in Captain Kleckner’s case. She is not what the law regards as a “whistle-blower”.

[68] Ms. Gerami also placed considerable reliance on the decision of the Supreme Court in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3. S.C.R. 585 in which the court held that an individual is not precluded from accessing the provincial superior court in order to seek damages prior to seeking juridical review in the Federal Court. Ms. Gerami submitted that the holding in TeleZone supported Captain Kleckner’s claim in this court. In my view TeleZone is simply authority for the proposition that there is concurrent jurisdiction between the provincial superior court and the Federal Court when an individual seeks damages from the federal Crown. It is not authority for the proposition that an individual can bypass a statutory grievance regime and bring a claim directly to either a provincial superior court or the Federal Court.

The Plea for Injunctive Relief

[69] I have determined that Captain Kleckner must resort to the Canadian Forces grievance procedure before proceeding in this court. The issue remains whether this court should make any remedial orders in the form of injunctive relief pending the exhaustion of remedies available to Captain Kleckner under the National Defence Act. In particular, Captain Kleckner seeks injunctive relief that the referral that she attend a psychosocial assessment is of no force and effect, and that she be afforded the right to choose her own healthcare provider for the purpose of any medical treatment or assessment required by the Canadian Forces, including the psychosocial assessment that had been scheduled for February 27, 2013.

[70] In that regard, a detailed review of the merits of her case is necessary because the relief sought on her motion is the same as the relief sought in her Statement of Claim. To allow the motion would effectively constitute a final determination of the merits of her civil action.

[71] Captain Kleckner, in her lengthy affidavit in support of the injunctive relief claimed, goes to great lengths in an attempt to demonstrate that there was, in effect, a conspiracy among her superiors to subject her to medical procedures that were unwarranted. Captain Kleckner submits that both Warrant Officer Pearson and Dr. Shane O’Neill were effectively ordered to refer her for a psychosocial assessment by Lieutenant Colonel Bilodeau or, alternatively, some other unknown high-ranking officer. As referenced earlier, both Warrant Officer Pearson and Dr. Shane O’Neill unequivocally deny that they were ordered by anyone to refer Captain Kleckner for a psychosocial assessment.

[72] With respect to the referral for a psychosocial assessment arising out of unresolved issues that became evident when Captain Kleckner applied to be trained as a pilot in 2007, I believe that an objective observer might conclude that there existed at that time and continued to exist unresolved psychological issues that merited examination in October 2011. Quite apart from the fact that Canadian Forces members must at all times be deployable and therefore subject to being assessed medically whenever necessary and generally every two years following the age of 40, Captain Kleckner appears to take the view that she is somehow immune from assessment by the Canadian Forces. She maintains there is no basis for a psychosocial assessment. I have already made reference to the independent psychosocial report that Captain Kleckner generated in 2007 when applying to become a flight officer. I have quoted relevant portions of that opinion. In my view, the fact that Captain Kleckner exhibited aggressiveness, stubbornness, impatience, annoyance, and a tendency to push limits are character features that may bear further scrutiny.

[73] More relevant is Dr. Hayman’s view that, based on his own interaction with the plaintiff, and based on admissions made by her, a psychosocial assessment was required.

[74] Captain Kleckner’s conduct in relation to the drawing of blood for a glucose test and the subsequent, somewhat baffling exchange of telephone calls, emails, demands for different care providers, accusations of battery and implied threats of taking the matter to the media, lends support to the view that a psychosocial assessment might be helpful in assessing Captain Kleckner’s deployability.

[75] With respect to the glucose testing, it is Captain Kleckner’s view that the test should only have been conducted once she had been identified as suitable for deployment to a malaria-stricken conflict zone. The evidence given by Dr. O’Neill during the course of the intercepted interview with Captain Kleckner establishes that it was his view that these tests were taken in the ordinary course. It would appear that it was a purely Ottawa-based policy, based on Captain Kleckner’s research.

[76] Considered objectively, it seems to me that it would be helpful to know at the time a member is recruited, whether that member might be capable of being deployed to a malaria-stricken conflict zone. It seems to me a waste of resources to identify a member for deployment and thereafter learn, following a test, that the member cannot be deployed. It would be better to know in advance which members may be deployed. I pause to note that that is strictly my view, but I am sure that the matter can be easily resolved by those knowledgeable concerning the subject who would provide evidence in the course of a grievance hearing.

[77] It is my view that Captain Kleckner’s reaction to the drawing of blood for the purpose of glucose testing was unreasonable and understandably brought the attention of others upon her. It is not at all surprising that Captain Kleckner was “on people’s radar”.

[78] On the evidence before me, I am unable to conclude that there was a conspiracy to deprive Captain Kleckner of her rights to security as a person in contravention of s. 7 of the Charter. It is this accusation, which forms the linchpin of Captain Kleckner’s claim, that there has been misfeasance in the conduct of public office by her superiors. For the reasons set out above, I find it difficult, if not impossible, to conclude that such a claim has any merit.

[79] Captain Kleckner has also likened her situation to individuals who might be referred for unneeded surgery or injected with mind-altering drugs, citing R. v. Morgentaler (number 2), 1988 90 (SCC), [1988] 1 S.C.R. 30, Rodriguez v. British Columbia (Attorney General), 1993 75 (SCC), [1993] 3 S.C.R. 519; and Starson v. Swayze, 2001 7651 (ON CA), [2001] 201 D.L.R. (4th) 123 (Ont. C.A.). Captain Kleckner argues that the referral for a psychosocial assessment violates her right of security of the person by restricting her ability to control of her body, and by affecting her personal autonomy, dignity and privacy.

[80] I regard this submission as absurd. Glucose tests and psychosocial assessments are as different from unwarranted surgery and the non-consensual injection of mind-altering drugs as day is from night. What seems to be forgotten is the fact that Captain Kleckner is a member of the Canadian Forces. She is not a private citizen. She has contracted to be a person capable of protecting the citizens of this country and must be prepared for military conflicts that may arise at any time: see McBride v. Canada (Minister of National Defence), 2011 FC 1019, [2011] A.C.F. no 1250, at para. 5.

[81] It is the duty of Captain Kleckner’s superiors to ensure that she is at all times capable of fulfilling the role for which she has contracted. Looking objectively at her conduct during the 2007 incident when she applied for flight training, and her reaction to the referrals in 2011 and 2012, Captain Kleckner has consistently demonstrated a profound reluctance to be psychologically assessed within the military context despite having freely chosen to join the Canadian Forces. In my view, this raises the question why she is so opposed to what, on its face, appears to be a justifiable request to determine her suitability for deployment.

[82] I am in agreement with the submission of Ms. Marchildon that Captain Kleckner is seeking to achieve a status that is not enjoyed by any other member of the Canadian Armed Forces. Ms. Gerami’s proposal that Captain Kleckner simply be exempted from any possible deployment while the validity of the referral is being considered by this court would interfere with the Canadian Forces ability to manage its personnel in accordance with the “universality of service” principle set out in s. 33 of the National Defence Act. I agree that the decision to exempt any member from possible deployment must continue to rest with the Canadian Forces. An order that Captain Kleckner’s medical category remain in effect (namely that she is currently unable to be deployed) until her civil claim has been heard would prejudice the Canadian Forces ability to meet its statutory requirements under s. 33.

[83] Thus, on the first prong of the test, namely whether there is a serious issue to be tried, I conclude that Captain Kleckner’s case is weak, at best.

Irreparable Harm

[84] The referral for a psychosocial assessment with respect to Captain Kleckner bears with it the possibility that, should she be found subject to medical release from the Canadian Forces, such a process might take two years or more. Captain Kleckner has an option to further appeal the referral through the Canadian Forces Health Services network. Captain Kleckner can also file a grievance. It might well be that the Canadian Forces would deem it unfair to insist on a psychosocial assessment while the grievance is being pursued. In the circumstances, the potential harm that might be occasioned by Captain Kleckner by not issuing an injunction is purely speculative.

Balance of Convenience

[85] I find that the harm to the Canadian Forces, should this motion for an injunction be granted, is greater than the harm that Captain Kleckner might suffer if the referral for psychosocial assessment were to remain in place. The function of medical categories, such as the one imposed on the plaintiff, is to ensure patient access to the appropriate medical support while at the same time protecting the operational effectiveness of the Canadian Forces. Court intervention with respect to Captain Kleckner’s medical category would undermine the Canadian Forces Health Services ability to ensure that an ill or injured person is not assigned duties that would jeopardize their health, risk the safety of their fellow service members, or pose a risk to the military mission generally. The balance of convenience favours the defendant.

Conclusion

[86] For these reasons, the motion for injunctive relief is dismissed and this action is stayed pending Captain Kleckner exhausting her rights in accordance with the National Defence Act. Ms. Marchildon has undertaken that any time limit with respect to the filing of a grievance will be waived by the Canadian Forces and, given the seriousness of the grievance, the Chief of Defence Staff would refer such a grievance to the Grievance Board.

[87] In the event the parties are unable to agree on costs, I shall entertain brief submissions, restricted to five pages in length, within 45 days, on a timetable agreed to by counsel.

Mr. Justice Colin D. McKinnon

Released: January 15, 2014

COURT FILE NO.: 13-56847

DATE: 20140115

BETWEEN:

BEVERLY KLECKNER

Plaintiff

– and –

The Attorney General of Canada

Defendant

REASONS FOR JUDGMENT

C. McKinnon J.

Released: January 15, 2014

Kleckner v. Canada (Attorney General), 2014 ONSC 322

Case Summary

Overview

The Jurisdictional Issue

The Plea for Injunctive Relief

Irreparable Harm

Balance of Convenience

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 3