Court File and Parties
COURT FILE NO.: 13-57685 DATE: 2016/10/11 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Caroline Mary Sarah O’Farrell, Richard John Cameron, Connor John O’Farrell Cameron and Kelly Patricia O’Farrell Cameron, Plaintiffs
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, Michael Roblee, Defendants
BEFORE: Justice Stanley Kershman
COUNSEL: Peter Cronyn, for the Plaintiffs Michael Roach and Sarah Sherhols, for the Defendants Attorney General of Canada and Luc Boivin Peter George Hagen, for the Defendant Francois Duguay, Charles Gibson, for the Defendant Kevin Baillie Joseph Pierre Champagne, for the Defendant Gary Beam Charlotte Porter, for the Defendant Sylvain Berthiaume Fraser MacKinnon Blair, for the Defendant Greg Chiarot Porter Heffernan, for the Defendants Marc Godue and Mike Herchuk Lawrence Greenspon, for the Defendant Cory Hoehn Christopher J. Hutchison, for the Defendant David Kopp Donald Morris, for the Defendants Gerry Ogilvie and Michael Roblee Christine A. Powell for the Defendant Christine Mackie Windover
HEARD: April 06, 2016 and June 24, 2016
REASONS FOR DECISION
Introduction
[1] This motion is brought by the Defendants, the Attorney General of Canada and Luc Boivin, supported by the Defendants Christine Mackie Windover and Francois Duguay (collectively, “the Defendants”), for an Order dismissing the Statement of Claim, thereby terminating the action. In the alternative, the Attorney General of Canada and Luc Boivin seek to be allowed 30 days to serve and file a Statement of Defence.
[2] This action arises out of alleged misconduct that arose while the Plaintiff was serving with the Musical Ride at the Royal Canadian Mounted Police (“RCMP”) in the mid-1980s.
Factual Background
Statement of Claim
[3] The Plaintiff, Caroline O’Farrell, was a Staff Sergeant with the RCMP. The other Plaintiffs in the action are her children and former husband, who are advancing derivative claims under the Family Law Act, R.S.O 1990, c. F.3..
[4] The allegations in the Statement of Claim (“Claim”) all stem from the Plaintiff’s work as a member of the RCMP’s Musical Ride between April 1986 and July 1987. The Plaintiff alleges that the Defendants caused her injuries through various acts or omissions related to her time with the RCMP Musical Ride.
[5] The Plaintiff alleges that while she was a member of the RCMP’s Musical Ride, her colleagues on the Musical Ride assaulted and harassed her. Specifically, the Plaintiff alleges that she was the victim of several incidents of assault, sexual assault, and other forms of harassment perpetrated by her RCMP Musical Ride colleagues.
[6] The Plaintiff also alleges that RCMP management did not take appropriate action in response to these incidents. She was transferred off of the rest of the Musical Ride 1987 tour against her will and was placed back in Ottawa alongside one of her main harassers. The Plaintiff alleges that, following the largest internal investigation ever conducted in Ottawa, the RCMP took no real or substantial action against her harassers, most of whom continue to work in the RCMP today.
[7] The causes of action pleaded are battery, assault, sexual assault, intentional infliction of mental suffering, misfeasance in public office, breach of section 15 of the Canadian Charter of Rights and Freedoms (the “Charter”), and breach of contract. In addition to seeking damages for these causes of action, she seeks damages for loss of income and punitive damages.
[8] All of the damages claimed directly related to incidents arising out of the Plaintiff’s service with the RCMP.
The Plaintiff’s PTSD
[9] The Plaintiff claims that these incidents had a significant psychological effect on her mental health and that she subsequently developed post-traumatic stress disorder (“PTSD”). In particular, she alleges that, because of the Defendants’ conduct, she has suffered from “flashbacks and recurring nightmares”, and that she “became insecure, self-doubting and defensive at work”, having previously been confident and outspoken.
[10] The Plaintiff alleges that the Defendants’ conduct has “permanently damaged her confidence and self-esteem”, and that she became “quiet and cautious in meetings or in the office”, when she was previously “confident and outspoken in her dealings with colleagues”.
[11] In short, the essence of the Plaintiff’s claim is that she developed PTSD as a result of the alleged actions of the Defendants during her service with the RCMP Musical Ride.
Disability Pension
[12] Veterans Affairs Canada (“VAC”) is the Department responsible for adjudicating disability awards on behalf of the RCMP with respect to applications made by or on behalf of a member.
[13] By Order of Charbonneau J. dated December 6, 2013, this action was stayed until the Plaintiff’s entitlement to a disability pension under the Pension Act, R.S.C. 1985, c. P-6, for the matters at issue in her claim was decided.
[14] On December 9, 2013, the Plaintiff submitted her application for a disability pension to VAC.
[15] On December 9, 2014, VAC awarded the Plaintiff a disability pension for her PTSD attributable to her service with the RCMP. The interim assessment by VAC assessed her disability at 10%.
[16] By January 16, 2015, the Plaintiff’s PTSD stabilized to a moderate level of impairment. Consequently, on February 5, 2015, the Plaintiff applied for a review of the VAC decision and, on March 4, 2015, VAC amended its previous decision and increased the Plaintiff’s disability pension to 46%. The Plaintiff did not pursue any appeal of VAC’s decision to the Veterans Review and Appeal Board.
[17] Pursuant to section 39 of the Pension Act, the Plaintiff’s pension award was retroactive to December 9, 2013, the date of her pension application. She received a one-time payment of $16,340.21 and receives a monthly pension of $1,806.03.
[18] Throughout the materials submitted in support of her disability pension application, the Plaintiff and her treatment providers reiterate and repeatedly rely on the same series of incidents and allegations as those which she is now claiming damages in the current lawsuit.
[19] For example, in her pension application, the Plaintiff was required to describe how her PTSD was related to her service with the RCMP. In response to this question, the Plaintiff provided a brief summary of the alleged incidents, attached the Claim filed in this action, and stated:
For a chronological listing of most of the incidents of harassment, assault and bullying I endured while a member of the Musical Ride, please see the attached Statement of Claim that was issued on May 21, 2013 at the Ontario Superior Court of Justice in Ottawa, Ontario, Court File No.: 13-57685.
[20] In response to the other pension application questions, the Plaintiff repeated, in detail, the allegations in her Claim, including:
a) The psychological affect the Musical Ride incidents had on her; b) Her change in personality after the incidents; c) The affect the incidents had on her career; d) The effect the incidents had on her relationships; and e) The RCMP’s failure to take appropriate action in response to the incidents.
[21] In addition, as part of the pension application process, the Plaintiff provided a number of medical documents supporting her claim that she was suffering from PTSD related to her service with the RCMP. All but one of these documents refers to the allegations made in the Claim. For example:
a) Medical opinion prepared by psychiatrist, Dr. Richard Levine, dated July 20, 2012, which outlines in detail the same allegations in the Claim, including: i) the incidents that occurred when she was with the Musical Ride; ii) the psychological affect the incidents had on the Plaintiff; iii) the change in her personality; iv) the affect the incidents had on her career; and v) the affect the incidents had on her relationships. b) Evaluation Disability Questionnaire dated June 21, 2013, which refers to “a whole series of abusive experiences” that occurred during the Plaintiff’s time with the Musical Ride in 1986 and 1987. c) Medical note by Dr. Levine dated June 21, 2013, which refers to the Musical Ride incidents in general terms and discusses the psychological affect these incidents had on the Plaintiff. d) Further report by Dr. Levine dated December 5, 2013, which discusses the psychological affect the Musical Ride incidents had on the Plaintiff. e) Medical Report by Dr. Ken Welburn dated March 20, 2014, which references the incidents in the Claim and outlines: i) the psychological affect the incidents had on the Plaintiff; ii) the change in her personality iii) the affect the incidents had on her career; and iv) the affect the incidents had on her relationships. f) Medical questionnaire completed by Dr. Levine dated April 28, 2014, which identifies the alleged Musical Ride incidents as the cause of the Plaintiff’s psychiatric condition and again outlines in detail the allegations contained in the Claim.
Issues:
[22] The following are the issues on the motion:
- What is the test on a motion to strike a claim?;
- Does section 9 of the Crown Liability and Proceedings Act (“CLPA”) bar the Plaintiff’s Claim?; and
- Does subsection 111(2) of the Pension Act bar the Plaintiff from bringing this Claim?
Issue: What is the Test on a Motion to Strike a Claim?
Defendants’ Position
[23] The Defendants, the Attorney General of Canada and Luc Boivin, argue that under Rule 21.01(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the Defendants can move before a judge for a determination of a question of law that may dispose of a claim. In addition, they argue that the Defendants may move to strike a claim because it discloses no reasonable cause of action under Rule 21.01(1)(b), or is an abuse of process under Rule 21.01(3)(d) and Rule 25.11(c).
[24] The Defendants argue that, in each of these cases, a claim will only be struck if the Defendants show that it is plain and obvious that the claim cannot succeed. It relies on R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17–25, along with other cases set out in their factum.
[25] They also argue that a claim may be struck pursuant to Rule 21.01(3)(a), where a court does not have jurisdiction over the subject matter of the action. The Defendants argue that it is plain and obvious that the Plaintiff’s Claim cannot succeed because it is barred by section 9 of the CLPA and has no reasonable prospect of success because the Plaintiff is receiving a pension under the Pension Act for the same factual foundation as the Claim.
[26] This position is supported by the Defendants, Christine Mackie Windover and Francois Duguay.
Plaintiffs’ Position
[27] The Plaintiff submits that the motion is largely about the interpretation of section 9 of the CLPA and requires a determination of whether section 9 is sufficiently plain and obvious that the issues can be decided on a motion under Rule 21. It cites R. v. Imperial Tobacco, supra, for the proposition that the “plain and obvious” test applies to questions of statutory interpretation. At para. 132, the Court concluded that a particular interpretation of British Columbia’s Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, was “plain and obvious”.
[28] The Plaintiff also relies on the following passage from McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 32 (emphasis in original):
In plain terms, because legislatures do not always speak clearly and because the tools of statutory interpretation do not always guarantee a single clear answer, legislative provisions will on occasion be susceptible to multiple reasonable interpretations.
[29] If section 9 of the CLPA is capable of multiple reasonable interpretations, the Plaintiff argues that the action should not be struck if one of those reasonable interpretations permits her claim to proceed.
[30] The Plaintiff raises two principles of statutory interpretation that this Court should apply: that statutes should be liberally construed in favour of the individual whose right to sue for compensation is in question; and that the specific provision must be considered in the context of the broader legislative purpose of the Act as a whole. The purpose of the CLPA was to establish Crown liability, which had been previously blocked by the common law.
Analysis
[31] In the recent case of Doyle Salewski Inc. v. Lalonde, 2016 ONSC 5313, the correct test for a Rule 21 motion to strike was analyzed by this Court, and was found to have been set out in the case of Choc v. Hudbay Minerals Inc., 2013 ONSC 1414, 116 O.R. (3d) 674. At para. 41, Brown J. states the following:
The pleading should not be struck if there is a chance that the Plaintiff may succeed. Neither the length nor the complexity of the issues, the novelty of the cause of action, nor the potential for the Defence to present a strong case should prevent the Plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect should the claim be struck out.
[32] At para. 42, the Court says that a motions judge should read the pleadings generously, providing allowances for any inadequacies due to drafting deficiencies.
[33] The Court also finds that the threshold for sustaining a pleading is not high: as set out by Conway J. in 1597203 Ontario Ltd. v. Ontario, [2007] O.J. No. 2349 (S.C.), “a germ or scintilla” of a cause of action will be sufficient. The Court agrees with that test.
[34] This issue was also dealt with in Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 9:
Because the purpose of a rule 21.01(1)(b) motion is to test whether the plaintiff's allegations (assuming they can be proved) state a claim for which a court may grant relief, the only question posed by the motion is whether the statement of claim states a legally sufficient claim, i.e., whether it is substantively adequate. Consequently, the motions judge, as mandated by rule 21.01(2)(b), does not consider any evidence in deciding the motion. The motions judge addresses a purely legal question: whether, assuming the plaintiff can prove the allegations pleaded in the statement of claim, he or she will have established a cause of action entitling him or her to some form of relief from the defendant. Because dismissal of an action for failure to state a reasonable cause of action is a drastic measure, the court is required to give a generous reading to the statement of claim, construe it in the light most favourable to the plaintiff, and be satisfied that it is plain and obvious that the plaintiff cannot succeed. See Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321. [Emphasis in original.]
[35] Based on the reasoning in para. 9 of Dawson, the Court finds that the Plaintiff can establish a cause of action, assuming the Plaintiff can prove the allegations pleaded.
[36] It is not “plain and obvious” to this Court that the Plaintiff’s Claim will not succeed. The Court finds that there is at least a germ or scintilla of evidence with respect to all of its claims, on the basis of which it could succeed.
Issue: Does Section 9 of the Crown Liability and Proceedings Act Bar the Plaintiff’s Claim?
Defendants’ Position
[37] The Defendants argue that it is plain and obvious that section 9 of the CLPA is a complete bar to the Plaintiff’s Claim. The Plaintiff is receiving disability benefits under the Pension Act for PTSD related to her service with the RCMP Musical Ride, the same underlying factual basis that forms the basis of the Claim.
[38] In support of her pension application, the Plaintiff attached the Statement of Claim and virtually all of the supporting documents for the application refer to the same allegations detailed in her Claim. The Defendants argue that, in terms of the underlying factual basis, the Claim is simply indistinguishable from the disability pension she is receiving.
[39] The Defendants argue that all causes of action alleged in the Claim are barred by section 9 of the CLPA, including the Plaintiff’s section 15 Charter claim: they are all based on the same allegations and factual foundation for which the Plaintiff is being compensated for by her pension.
Plaintiffs’ Position
[40] The Plaintiff argues that section 9 of the CLPA does not bar claims based on malicious and intentional acts by Crown servants, relying on paragraphs 10 to 12 of the Ontario Court of Appeal’s decision in Young v. McCreary (2001), 53 O.R. (3d) 257 (C.A.), discussed below.
[41] The Plaintiff contends that her Claim is not based on negligence, but rather upon intentional torts, breach of contract, and constitutional law. Her Claim is not just that the actions of the various individual defendants were intentional, but also that they were malicious and thus outside the scope of their duties. The claims, if proven, fall outside of the scope of section 9 of the CLPA.
[42] Furthermore, the Plaintiff submits that her Claim is not for the same “injury, damage or loss” as compensated by her disability pension. The VAC pension decision did not provide any details of the “injury, damage or loss” in respect of which it was made, aside from stating that it was compensating the Plaintiff for her PTSD incurred as a result of events during the Musical Ride.
Analysis
[43] Section 9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (“CLPA”), states 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 the claim is made.
Broad Language of Section 9, CLPA
[44] The leading case in relation to section 9 is Sarvanis v. Canada, 2002 SCC 28, [2002] 1 S.C.R. 921. In Sarvanis, a federal penitentiary inmate sued the Crown in tort after he sustained serious and permanent personal injuries while working. The Crown moved for summary judgment claiming that the action was barred by section 9, as Mr. Sarvanis received disability benefits under the Canada Pension Plan (“CPP”). In restoring the decision of the Federal Court to dismiss the motion, Justice Iacobucci, writing for the Court, found that CPP is a contributory plan, whereby benefits are contingent on a present disabled condition and not on the occurrence of an event, the factual basis of which bars claims against the Crown as per section 9.
[45] The Court in Sarvanis deals with the phrase “in respect of” found in section 9 of the CLPA, finding that it signals “an intent to convey a broad set of connections” and is “the widest of any expression intended to convey some connection between two related subject matters” (at paras. 20, 22, citing Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 39, per Dickson J.; CanadianOxy Chemicals Ltd. v. Canada (A.G.), [1999] 1 S.C.R. 743, at para. 16).
[46] Nevertheless, in Sarvanis, the Supreme Court of Canada declared that the inquiry is not concluded merely because the phrase is very broad (at para. 22). The inquiry requires that a pension or compensation paid or payable be made on the same factual basis as the action thereby barred (at para. 28).
[47] The Court, at para. 28, indicated that it was Parliament’s desire is to prevent double recovery for the same claim where the government is liable for misconduct but has already made a payment in respect thereof. This is to ensure that there is no Crown liability under ancillary heads of damages for an event already compensated (at para. 28).
[48] All damages arising out of the incident that entitles the person to a pension will be subsumed under section 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 (at para. 29).
[49] At para. 38, Iacobucci J. said that section 9 “establishes Crown immunity where the very event of death, injury, damage or loss that forms the basis of the barred claim is the event that formed the basis of a pension or compensation award.”
[50] Although Iacobucci J. used pensions payable to members of the Canadian Forces under the Pension Act as an example of compensation that forecloses an action pursuant to section 9, his reasoning, at para. 35, was as follows:
[I]n each case[,] the crucial condition of eligibility is the occurrence of “death, injury, damage or loss”, and that it is because of that occurrence that the pension is received…. [T]hese pensions are paid on the same basis as a tort claim, while the CPP is paid on the same basis as an insurance claim.
Pre-Sarvanis Case Law: Nexus Between Pension and Injury Required
[51] In Gustar v. Wadden (1994), 45 B.C.A.C. 55 (supplementary reasons at [1994] B.C.J. No. 1819), the British Colombia Court of Appeal was required to decide whether a pension was “payable” within the meaning of section 9, where the appellant had not applied for a pension. Justice Finch set aside the stay of proceedings, as the Crown was unable to prove that a pension was payable and could not force the appellant to apply for a pension. Finch J.A. also made the following remarks, at paras. 18–19:
I also wish to add that the plaintiff's claims in this action are not limited to damages for personal injuries which are the usual basis for pensions. He also claims in defamation and loss of reputation which are not usually the subject of pensionable compensation.
I doubt if some of these claims are pensionable even if his other claims might be. The order staying the action contemplates the possible satisfaction of the plaintiff's claims by a pension award. I doubt if that is possible, even if some pension entitlement could be established. On this ground as well, I think it was wrong to stay the plaintiff's action.
[52] Gustar was referred to by the case of Leach v. R. (1995), 106 F.T.R. 300 (F.C.), at paras 16–17 [footnotes omitted]:
I have concluded that the causes of action in this case are not matters in respect of which a pension may be awarded. In Gustar, the British Columbia Court of Appeal said at page 58 that personal injury is not a usual basis for a pension and that defamation is not usually the subject of pensionable compensation.
Sexual harassment and defamation, though they occurred in a military context, have no direct nexus to a military situation. They could have occurred anywhere. In my view, the link to the military would be too tenuous to support a pension award.
[53] In the case of Duplessis v. Canada, 2001 FCT 1038, aff’d 2002 FCA 338, according to Lemieux J., section 9 of the CLPA and section 111 of the Pension Act “require a factual foundation and a nexus between the pension paid and the injury or its aggravation” (at para. 22).
[54] In Duplessis, following peacekeeping missions in Croatia and Bosnia in 2002, a soldier was diagnosed with PTSD and received a pension entitlement. He brought an action against the Crown in the amount of $500,000 for harm done by the Armed Forces in failing to address his condition upon his return to Canada.
[55] Lemieux J. upheld the prothonotary’s decision to dismiss the Crown’s motion to strike, and held the following:
[T]he plaintiff's claim is not for compensation on account of his PTSD injury or any aggravation or continuation of the symptoms associated with it upon his return to Canada. It is for other harms suffered resulting in damages which have nothing to do with the pension he is receiving and arises out of the negligence of the Crown's servants in failing to address his condition; it is for breach of fiduciary and other statutory duties in failing to provide assistance; it is for racial discrimination and discrimination on account of mental disability under the Charter and it is for bad faith in his discharge because his illness was a pretext. These are separate and distinct unrelated claims to his PTSD (at para. 20).
[56] Justice Lemieux found that the “factual foundation [was] missing and the nexus not established which would normally be established in the Crown's statement of defence” (at para 22). This decision was upheld at the Federal Court of Appeal.
Claims not Barred Based on Acts Done Outside Scope of Employment
[57] Young v. McCreary (2001), 53 O.R. (3d) 257 (C.A.), was decided in the months before the Supreme Court of Canada released its Sarvanis decision. Nevertheless, the Court of Appeal was aware that leave had been granted from the Federal Court of Appeal’s decision (at (2000), 184 D.L.R. (4th) 124) and declined to determine whether disability payments from the CPP and the Public Service Superannuation Act precluded recovery pursuant to section 9 of the CLPA.
[58] In Young, the Court of Appeal did decide, however, that Correctional Services Canada (“CSC”) was not entitled to the benefit of the protection of section 9 of the CLPA in a claim against it for defamation and malicious prosecution. The motions judge dismissed the action, holding that the CSC employees were acting within the scope of their employment when they filed complaints of harassment against the plaintiff, their supervisor, and that section 9 of the CLPA applied even if the defendants were acting with malice outside the scope of their employment.
[59] The Court allowed the appeal and held, at para. 14, that “the proposition that s. 9 applies to Crown servants without regard to any consideration of the capacity in which they acted is wrong in law.” Section 9 cannot be used to “shield Crown servants from liability without regard to the capacity in which they were acting at the time of the alleged wrong” (at para. 11).
[60] In this Court’s view, Young, and its outside-the-scope-of-employment reasoning, does not appear to have been overturned by Sarvanis.
[61] This is apparent in the reasons of the Divisional Court in the case of Brownhall v. Canada (National Defence) (2007), 87 O.R. (3d) 130, where, on appeal, the Court dismissed most of an action under section 9 of the CLPA by reason of receipt of a disability pension under section 21(1) of the Pension Act for injuries suffered in the military.
[62] Swinton J.A., writing for the majority, struck Mr. Brownhall’s allegations of sexual assault, assault, and battery; the resulting loss of income; and breach of fiduciary duty and negligence on the part of the military officers who should have prevented hazing rituals that caused his injuries.
[63] At para. 40, the Court distinguished Young on the following basis:
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.
Post-Sarvanis Interpretation of Section 9: Whether Claim Necessarily Barred?
[64] Since Sarvanis used the Pension Act — a statute “providing pensions or compensations that are clearly foreclosed by s. 9 of the Crown Liability and Proceedings Act” (at para. 34) — to differentiate the treatment of CPP benefits, courts have not consistently dealt with the operation of section 9 in the context of such pensions. Some decisions have found it plain and obvious that a plaintiff could not proceed in an action for damages, having received pension benefits from injuries stemming from the same factual basis.
[65] For example, Sarvanis was followed by Dionne v. Canada (2002), 59 O.R. (3d) 566 (C.A.), a decision of the Ontario Court of Appeal upholding the decision of a motions judge to dismiss an action because section 9 of the CLPA barred a damages claim: the plaintiff had received a pension under section 21(2) of the Pension Act for an injury arising out of military service.
[66] The reasons of the Court of Appeal in Dionne were quite brief. In that case, the pension was for a knee injury and resulting aggravated injuries. The Court in Brownhall, supra, summarized the Dionne decision as follows:
[A] member of the Armed Forces had injured his knee during the course of his duties, and he received a pension pursuant to s. 21(2) of the Pension Act. He then brought an action in tort claiming damages for the permanent disability of his knee, alleging that negligent mistreatment by medical officers aggravated his initial injury (unreported decision of the Ont. S.C.J., dated September 28, 2001). The motions judge granted summary judgment and dismissed the claim. His decision was upheld by the Court of Appeal on the basis that the pension granted pursuant to s. 21(2) of the Pension Act had been awarded as a result of an injury arising out of or directly connected to military service. Therefore, s. 9 of the CLPA foreclosed a tort action for the same injury (at para. 26).
[67] A more extensive analysis of section 9 of the CLPA can be found in the reasons of the Divisional Court in Brownhall, supra. Swinton J.A., in striking Mr. Brownhall’s claims, held the following:
Clearly a claim based on the appellant's responsibility for the assault is barred by s. 9, as the pension was awarded on the same factual basis as this aspect of the claim for damages.... In addition, it would appear that the claim relating to the failure to prevent hazing prior to the assault in Afghanistan is barred. Presumably, the failure to prevent hazing led to the assault (at paras. 47-48).
[68] At the Brownhall leave to appeal decision (at (2006), , 80 O.R. (3d) 91), Justice Ditomaso of the Superior Court of Justice, in allowing the Crown’s appeal following its unsuccessful motion to strike, relies on the Federal Court of Appeal’s decision in Dumont v. Canada, 2003 FCA 475, [2004] 3 F.C.R. 338, wherein most of the claims of two soldiers were struck because
they are all the result of “an injury or disease or an aggravation thereof”…[,] arise from, or are connected to, their military service…[,] all give entitlement to a pension…[,] [and] could all be the subject of a tort action absent the prohibition provided by section 9 of the Act (at para. 63).
[69] Importantly, however, the claims in Dumont all stemmed from either a traumatic diving mission and subsequent lack of treatment (in the case of one of the two soldiers) or being forced to perform work for which they were not qualified and the lack of post-mission therapy (in the case of both soldiers) (see Dumont, at paras. 6, 7, 28–31).
[70] Although he ultimately thought that the Crown’s motion to strike ought to have succeeded, Ditomaso J. did make the following remarks:
If it is not plain and obvious that the injuries claimed in the action are not identical to the injuries for which the pension was awarded, the statutory bar provided by s. 9 of the CLPA may not apply. It is for the Crown to prove at trial that the damages giving rise to the plaintiff's action are identical to the psychological difficulties for which the plaintiff is receiving his pension. This is a triable issue regarding which the court lacks the evidentiary record to draw conclusions on a Rule 21 motion. Complete evidence as to the nature and extent of the injuries claimed by the plaintiff should not be evaluated in the context of the motion to strike. Instead, it is a matter that requires full pleadings and discoveries (at para. 38).
[71] The dissenting judge at the Divisional Court in Brownhall, Taliano J., reviews the conflicting jurisprudence, including Dumont and Cross v. Sullivan (11 November 2006), Kingston, 14244/02 (Ont. S.C.), and concludes that the motions judge “was correct when he observed that the case law in this area is still evolving” and was correct to dismiss the Crown’s motion to strike.
[72] In Cross — an unreported decision of the Superior Court of Justice referred to by both the majority and the dissent in Brownhall, supra — the Court denied the Crown’s motion for summary judgment in an action by a member of the Canadian Armed Forces arising out of the termination of his military career. Mr. Cross alleged that he received false performance evaluations and sustained subsequent workplace harassment from his superiors, which caused him to suffer a mood and anxiety disorder, which lead to his dismissal.
[73] Mr. Cross was granted a disability pension by VAC and, following a review of the pension decision, an increase in his disability pension assessment rate. He then sued the Attorney General of Canada and his immediate supervisors under a number of heads of damages, including conspiracy; intentional infliction of emotional and economic harm; abuse of authority; breach of fiduciary duty; loss of past and future income; and breach of his sections 7 and 15 Charter rights. His wife and children also brought derivative Family Law Act claims.
[74] Justice Lafrenière, commenting on the “deliberate wrongdoing by superior officers” (at para. 110), found there to be a triable issue as to whether or not the combined effect of section 9 of the CLPA and the Pension Act eliminates Mr. Cross’s common law right to claim damages. At paras. 111 and 113, she stated the following:
While Cross may receive a pension, that compensates him for the injury caused by the wrongdoing, he has not been compensated for the wrongdoing itself.
I find that Cross is not seeking double or enhanced recovery. He is seeking recovery for injuries and losses that are not necessarily covered by the disability pension. I am not persuaded on this record that the disability pension encompasses all the injury or harm caused to Cross.
[75] Notwithstanding the aforesaid, in the case of Sherbanowski v. Canada, 2001 ONSC 177, the Crown was successful in striking the claim of a Canadian Armed Forces soldier who developed PTSD, major depression, and lymphoma, stemming from physical and mental abuse (and his use of anabolic steroids) while employed, for which he received disability benefits. Mr. Sherbanowski brought claims against the Crown for the harassment and physical abuse he suffered; claims grounded in breach of contract and negligent misrepresentation; general damages; loss of past and future income that was not compensated by a pension; and aggravated, exemplary and punitive damages (at paras. 40–41).
[76] Justice Brown of the Superior Court of Justice found a “complete identity” between Mr. Sherbanowski’s losses and the losses for which awards of disability benefits had been granted to him. To him, the claims for damages rested upon the same factual basis as his applications for disability awards (i.e. harassment and abuse prior to his deployment to Bosnia; his possible exposure to uranium in Bosnia; and the harassment and abuse following his return from Bosnia, including the difficulties he claims he encountered in securing medical attention).
[77] In the case of Prentice v. Canada, 2005 FCA 395, [2006] 3 F.C.R. 135, the Crown was also successful in striking the claim of an RCMP officer who sought over $3 million in damages due to not having received proper training for a mission in Nambia, Africa and the former Yugoslavia, during which he experienced stressful events and “violated [his] right to the physical and psychological security of his person” (at para. 5). Essentially, he claimed a violation of his section 7 Charter rights, and was not seeking damages against the Crown in tort, but instead a remedy under section 24 of the Charter. However, because the applicant framed his action seeking compensatory, moral, and exemplary damages typical of an action in tort, the Court found that it was a “disguised action in civil liability against the Crown…[,] based on an accident in the course of employment” (at paras. 70–71), and barred by section 9 of the CLPA.
Door Left Open for Certain Claims to Succeed
[78] In Brownhall, supra, the applicant’s remaining claims were not struck. These were damages for intentional infliction of mental suffering, breach of fiduciary duty, breach of section 7 of the Charter and negligence, all arising from the actions or inactions of his superior officers in Afghanistan and back in Canada after the assault occurred:
On the facts pleaded and on the basis of the sparse language of the decision letter awarding the pension, it is not plain and obvious that the injuries claimed in the action as a result of conduct following the assault are identical to the psychological injury for which the pension was awarded. In order to invoke the bar in s. 9 of the CLPA, the Crown must lead sufficient evidence to prove that the respondent's PTSD compensates for the conduct that occurred after the assault. On a Rule 21 motion, without the appropriate evidentiary foundation, it is not plain and obvious that the claim for damages for events after the assault is barred by s. 9 (at para. 51).
[79] In Dumont, the Federal Court of Appeal also declined to strike claims based on section 7 of the Charter:
[I]n the event that the respondent has breached the appellant’s rights that are guaranteed by this section, it is far from certain that section 9 of the Act can be relied upon to exclude a fair and appropriate remedy in keeping with the circumstances. It is up to the judge responsible for applying subsection 24(1) of the Charter, to assess whether the pension that might be awarded is appropriate and fair in regard to the circumstances, or if it would be appropriate to add further compensation (at para. 78).
[80] The Court commented on how the trial judge distinguished the Federal Court’s decision in Duplessis, supra, in that “there was an element of discrimination and Sergeant Duplessis was alleging ‘alienation or stigmatization, mental suffering, humiliation and loss of dignity’” (Dumont, supra, at para. 36). However, the Federal Court of Appeal in Dumont did not comment on the trial judge’s finding regarding Duplessis.
[81] Cross reveals that plaintiffs may be able to recover for injuries and losses that are not necessarily covered by their disability pension. Brownhall leaves open the possibility that claims for damages based on events that occurred after the injury — i.e. based on the mistreatment of the injuries — are not destined to fail. Brownhall and Dumont leave open the possibility that Charter claims are not destined to fail. Furthermore, Dumont suggests the earlier reasoning in Duplessis is still good law.
[82] In the present case, following the reasoning in Cross, the Court finds that the Plaintiff may be able to recover for injuries and losses that were not covered by her disability pension.
[83] In addition, following the reasoning in Brownhall, the Court finds that there is a possibility that the Plaintiff asserts claims for damages based on events that occurred after the injury, and that such claims are not destined to fail.
[84] Further, following the reasoning in Brownhall and Dumont, in the present case, the Court finds that there is a possibility that the Plaintiff’s section 15 Charter claim is not destined to fail.
[85] Therefore, the Court finds that section 9 of the CLPA does not bar the Plaintiff’s claim.
Issue: Does Subsection 111(2) of the Pension Act Bar the Plaintiff from Bringing this Claim?
Defendants’ Position
[86] Since the entire action should be struck based on section 9 of the CLPA, the Defendant, the Attorney General of Canada, argues that it is not necessary for this Court to consider this issue.
[87] However, in the event that the Court concludes that a portion of the action is not barred by section 9, the Attorney General supports the alternative argument raised by the Defendant, Christine Mackie Windover, that the Court must stay the action pursuant to subsection 111(2) of the Pension Act and the previous decision of Charbonneau J. in this matter (O’Farrell v. A.G., 2013 ONSC 6987) until the Plaintiff satisfies the statutory prerequisites for bringing the action.
[88] The Defendants assert that this would require the remaining portion of the action to be stayed until the Plaintiff receives a decision from the Veterans Review and Appeal Board (“VRAB”), since only the VRAB can determine whether a pension is payable pursuant to the Pension Act. The VRAB has full and exclusive jurisdiction to hear, determine and deal with all applications for review that may be made to the Board under the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (see Veterans Review and Appeal Board Act, S.C. 1995, c. 18, s. 18).
[89] The Defendants assert that this Court has no jurisdiction to determine whether a pension is payable under the Pension Act, or to entertain an action where a plaintiff has not satisfied the conditions in subsection 111(2) of that Act. They rely on the Division Court’s decision in Brownhall, supra, where the Court stayed the remaining part of Mr. Brownhall’s action until he exhausted all of his remedies under the Veterans Review and Appeal Board Act (at para. 64).
Plaintiffs’ Position
[90] The Plaintiff argues that the stay of proceedings under subsection 111(2) of the Pension Act should not bar the Plaintiff from proceeding with the action. The application for the VAC pension brought to the attention of Veterans Affairs Canada all of the Plaintiff’s claims for damages arising out of these incidents. The result was a specific award in relation to the Plaintiff’s PTSD and did not award any pension for any of the other damages set out in the Statement of Claim. Thus, the VAC pension decision is a decision “to the effect” that no pension is payable in regard to those damages, as per subsection 111(2).
[91] To accept the contention by the Defendant, Christine Mackie Windover, that the stay must remain in place would give rise to an absurd result: the Plaintiff’s claims would not be barred but would remain stayed until she went back to have VAC go through the process they already have and come to the conclusion they already have.
Analysis
[92] Subsection 111(2) of the Pension Act reads as follows:
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 [S.C. 1995, c. 18].
[93] “Action” is defined in section 111(1) to include an action brought by a member of the armed forces against the Crown “in which damages are claimed in respect of an injury or disease or aggravation thereof resulting in disability or death.”
[94] For those claims that are not barred by section 9 of the CLPA, subsection 111(2) of the Pension Act appears to require the applicant to apply to the VRAB for a pension redetermination or an appeal.
[95] For example, the Divisional Court in Brownhall, supra, stated that it was not for the Court to determine whether Mr. Brownhall suffered injury as a result of the conduct of his superior officers that would entitle him to a further pension (in addition to the one already received), and stayed the remaining part of his action until he has exhausted all his remedies under the Veterans Review and Appeal Board Act.
[96] However, in Cross v. Sullivan, supra, Lafrenière J. was not satisfied that subsection 111(2) should bar Mr. Cross’s action in the circumstances:
I am satisfied that this action should not be stayed as the Crown requests. [Mr.] Cross is not seeking to review his disability pension or re-assess it (at para. 122).
[97] Likewise, in Marsot v. Canada (Ministry of National Defence), 2002 FCT 226, [2002] 3 F.C.R. 579, the Federal Court of Canada dismissed the Crown’s motion for summary judgment and for a stay of proceedings in an action against Captain Marsot’s direct supervisors while a member of the Canadian Armed Forces. As a result of harassment and discrimination, she developed PTSD, for which she received a disability pension.
[98] The Court held that the Crown had not established that Captain Marsot was seeking double or enhanced recovery for the same injuries. It held, at para. 79, that an application for a stay under section 111 is granted only where the applicant has satisfied the court that the application for the pension is for the same disability as claimed in the action. In support of its decision to dismiss the motion, the Court specifically noted that Captain Marsot’s action was not seeking disability damages, and allowed it to proceed (at para. 80).
[99] In the present case, following the reasoning in both Cross and Marsot, this Court finds that the Plaintiff is not seeking to review her disability pension or re-assess it.
[100] Therefore, the Court finds that subsection 111(2) does not require the Plaintiff to apply to the VRAB for a pension redetermination or appeal.
[101] The Court finds that she can proceed with her action.
Conclusion
[102] For the aforesaid reasons, the motions to strike are dismissed.
[103] All Defendants in this action are allowed 30 days from this date to serve and file Statements of Defence.
Costs
[104] Certain counsel have submitted costs outlines while others have not. On April 6, 2016 the Court indicated that it would not accept cost outlines after June 24, 2016. The Court encourages the parties to resolve the issue of costs. In the event that they are unable to do so, the parties that have submitted costs outlines by June 24, 2016 shall contact the trial coordinator and obtain a date to provide oral submissions as to the issue of costs. The time allotted for this hearing is 45 minutes. Only those parties that have submitted costs outlines by June 24, 2016 will be allowed to argue the issue of costs.
[105] Order accordingly.