Charron v. Wilks and Attorney General of Canada, 2016 ONSC 6635

COURT FILE NO.: 2141-13

DATE: 2016/10/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Genevieve Charron (Plaintiff)

AND:

Ex-Petty Officer 2nd Class James Wilks (Defendant)

AND:

Attorney General of Canada (Department of National Defence) (Defendant)

BEFORE: Justice J. C. George

COUNSEL: Phillip Millar, for the plaintiff

Joel Levine, for the Attorney General of Canada, defendant

HEARD: September 7, 2016

ENDORSEMENT

[1] The defendant Department of National Defence (DND) moves for a stay pursuant to s. 91(2) of the Canadian Forces Members and Veterans Re-Establishment and Compensation Act, SC 2005, c. 21 (Compensation Act).

[2] The defendant Ex-Petty Officer 2nd Class James Wilks (Wilks) did not attend at or take a position on this motion.

[3] The plaintiff Genevieve Charron opposes it.

[4] The plaintiff claims damages from each defendant. She alleges Wilks, assigned by DND to perform a physical examination, sexually assaulted her. This was a mandatory physical to determine service eligibility. She was not a member of the Canadian Forces (CF) at the time.

[5] She passed the exam and enrolled approximately two months later. She was honourably discharged a month after that.

[6] The Statement of Claim was issued on November 18, 2013.

[7] The plaintiff claims Wilks’ actions have caused her significant psychological injury. She claims DND was negligent and is vicariously liable. She states this at para. 10 of her Statement of Claim:

[she]….struggled with the aftermath of the abuse during her short career. She was fearful of men in uniform, fearful of participating in activities where she knew the CF would have control over her, suffered from anxiety, and was fearful of being alone with anyone. She was eventually released from the military.

[8] A week after discharge, the plaintiff participated in a transition interview with a Veterans Affairs (VAC) employee. The VAC employee records this in his notes:

Client was being released 5D — not fit for service due to health issues which client were [sic] rather not disclose. She arrived on Base Borden on Jan. 16, 2010 and is being released for medical reasons….Client was apprehensive about discussing her health and would rather not go into any detail. She did reports [sic] that she didn’t sustain any new injuries the days on Borden. She stated that her mental health issue of PTSD had been triggers once enlisted. She did not want to provider [sic] any further detail….client has MH issues and symptoms were triggered by military.

[9] In March 2014 the plaintiff contacted VAC and expressed an interest in seeking an award for PTSD. She indicated she was “sexually assaulted” by someone “notorious for sexually assaulting people”. In response, VAC sent her an Application Kit. The plaintiff did not follow through.

[10] DND says the plaintiff, as a veteran, must apply to VAC for a determination on her entitlement to damages. It further contends that should she be unsatisfied with that initial decision, she must then apply to the Veterans Review and Appeal Board (VRAB). In other words she is barred from proceeding with this lawsuit, at least at this time.

[11] It is worth noting that should she receive any award by VAC, on account of Wilks’ behaviour, damages in this lawsuit would be foreclosed by operation of s. 9 of the Crown Liability and Proceedings Act, R.S.C., c. C-50 (CLPA). Even a nominal award would preclude damages in this action.

[12] I turn to the statutory regime.

[13] Section 92(2) of the Compensation Act states:

(2) An action that is not barred by virtue of s. 9 of the Crown Liability and Proceedings Act shall, on application, be stayed until an application for compensation has been made under this Act, in respect of the same injury, death, damage or loss in respect of which the claim 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) in the case of an application that may be made under Part 3, a decision to the effect that no compensation may be paid to or in respect of that person in respect of the same injury, death, damage or loss has been affirmed by an appeal panel of the Board in accordance with the Veterans Review and Appeal Board Act.

[14] Section 92(1) defines the term “action”:

(1) In this section, action means any action or other proceeding brought by or on behalf of a member, a veteran….against Her Majesty in which damages are claimed in respect of any injury, death, damage or loss for which compensation may be claimed under this Act.

[15] We must then look to the compensation provisions. Sections 45(1) and 46(1) provide that:

45(1) The Minister may, on application, pay a disability award to a member or a veteran who establishes that they are suffering from a disability resulting from

(a) a service-related injury or disease; or

(b) a non-service-related injury or disease that was aggravated by service.

46(1) For the purposes of s. 45(1), an injury or a disease is deemed to be a service-related injury or disease if the injury or disease, in whole or in part, is a consequence of

(a) a service-related injury or disease;

(b) a non-service-related injury or disease that was aggravated by service;

(c) an injury or a disease that is itself a consequence of an injury or a disease described in para. (a) or (b); or

(d) an injury or a disease that is a consequence of an injury or a disease described in para. (c).

[16] DND relies upon these provisions, as well as the statutory presumptions set out in s. 43, which requires the Minister, in assessing such applications, to draw every reasonable inference in favour of an applicant; to accept any uncontradicted evidence presented by the applicant; and to resolve any doubt in their favour. It points to other presumptions within the regulations, all of which benefit and assist an applicant.

[17] According to DND, this regime acknowledges VAC’s expertise in addressing service related injuries. It argues it is better able to give effect to the Act’s purposes which, unlike a court, is specifically constructed to assist a claimant.

[18] To complete the picture, I reproduce s. 9 of the CLPA:

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

[19] Should I conclude the Compensation Act and CLPA apply, DND would not have to then prove, at this early stage, that the plaintiff will receive compensation under that regime, only that she may be eligible based upon a sufficient nexus between the claimed injury (or aggravation) and her military service; see MacLellan v. Canada (Attorney General) 2014 NSSC 280.

[20] This is elaborated upon by the Ontario Divisional Court in Brownhall v. Her Majesty the Queen in Right of Canada, 2007 CanLII 31749 ON SCDC. At para. 64 the court states:

It is not for this court to determine whether the respondent suffered injury as a result of the conduct of his superior officers that entitles him to a further pension. Pursuant to s. 111(2), the remaining part of his action must be stayed until he has exhausted all his remedies under the Veterans Review and Appeal Board Act.

[21] The question is whether the Compensation Act applies and whether the prerequisites for a stay exist?

[22] The plaintiff says no, as her claim isn’t for damages arising from a service related injury, nor does she allege the aggravation of a non-service-related injury.

[23] The plaintiff’s injury was not suffered in the course of her service. This is indisputable. She was assaulted during a physical examination, which took place two months prior to enrolment. Section 45(1)(a) does not apply as, at the material time, she was not yet a member of the CF nor was she a veteran. If she was sexually assaulted by Wilks, any related injuries predate her service.

[24] I will therefore narrow my focus to s. 45(1)(b). Was any psychological harm aggravated by her service?

[25] In the absence of a service-related injury, or an aggravation of a non-service injury, there can be no stay. Damages would be recoverable outside the Compensation Act and this action could continue.

[26] DND argues there is no requirement to prove aggravation at this stage. It suggests it need only establish it as a justiciable issue on the basis of the record now before the court. It relies on the VAC discharge interview and the Statement of Claim. Is this sufficient to warrant a stay?

[27] The plaintiff suggests it’s inconceivable that this is the type of scenario envisioned by those who drafted the CLPA and Compensation Act.

[28] In addition to Brownhall and MacLellan, DND referenced three other authorities; Ouellette v. Attorney General of Canada, 2012 ONSC 7375; O’Farrell v. Attorney General of Canada, 2013 ONSC 6987; and Frizzell v. Royal Canadian Mounted Police, 2011 ONSC 3472. It argues each of these support its position that a stay should be ordered.

[29] The plaintiff argues none of them are persuasive or even directly on point. I agree. All of them involve service related injuries, or injuries clearly aggravated on account of service. She highlights the fact her injury occurred prior to enrollment and that it was not aggravated; acknowledging the assault’s impact was to prevent her from continuing in service. In other words, to see a manifestation of the assault’s impact, is not the same as the aggravation of a pre-existing injury.

[30] In Brownhall, where the court granted a stay, the plaintiff was an active member when she sustained her injury. Similarly in O’Farrell, the plaintiff was an RCMP member at the time. MacLellan involved the recurrence of injuries to the plaintiff, over the course of several years, aggravated by the ongoing conduct of his superiors.

[31] In Frizzell, the alleged abuse occurred while the plaintiff was a member of the RCMP. And in Ouellette, the plaintiff was a CF Commander when he claimed to be the victim of defamation.

[32] All of these cases are distinguishable. In each the claimant was either a member of the service (or RCMP) at the material time, or involved in discussions related to pre-existing injuries which were indisputably aggravated by their service.

[33] There is a difference between aggravation and an event that triggers upset and angst. In this instance, I am not sure how a pre-existing injury has been aggravated. DND points to evidence, and I use that term loosely, which, at its highest, shows the plaintiff was fearful of seeing men in uniform, and anxious about being in the military culture. What is clear from the note is there was no new injury, and that, in the plaintiff’s view, being at the base brought about certain feelings.

[34] During her two month service period, there is no new event. No malfeasance is alleged, nor is there reliance on any specific action of a DND employee.

[35] While I agree there need not be proof of a service-related injury (or aggravation), and while I am not to make a final determination on entitlement under the Compensation Act, there is a threshold to meet before a stay is appropriate. DND simply raising it as a question doesn’t make it so. The issue is whether she might be eligible for payment under the Compensation Act.

[36] I find that, on the record before me, one could not reasonably conclude the plaintiff had a non-service-related injury that was aggravated during her brief time in the military.

[37] I can imagine all manner of incidents where the concept of aggravation would fit within the scope and spirit of the legislation. One analogy would be a soldier who, at the time of admission, had a knee injury. Maybe they felt fine at the outset, was able to proceed through training, but at some point, on account of service related activities, complications arose. In those circumstances, a court claim would be barred. This would be clear upon a plain reading of the Compensation Act and CLPA. Not to mention the fact that, in those circumstances, there would surely be military records documenting the injury, what activity was undertaken to aggravate it, and related treatments.

[38] Beyond the VAC employee note, is there anything within the Statement of Claim that sheds any light on the issue of aggravation?

[39] As already indicated, the plaintiff alleges that during a pre-enlistment physical examination, Wilks sexually assaulted her. She alleges inappropriate sexual touching, and the use of unnecessary, unwarranted, unauthorized and excessive examination techniques.

[40] The claim details her struggles in the aftermath of the abuse, including during her short career in the CF. She goes on to clear up some of the ambiguity in the VAC note, confirming she is fearful of men in uniform, and of participating in activities where the CF would have control over her. She claims this, in turn, brought on anxiety, making it impossible for her to continue in the military.

[41] The plaintiff pleads that, as a private citizen, she was sexually assaulted by Wilks. Wilks was a CF employee and authorized to conduct the examination. She doesn’t suggest she suffered an injury during service. While she is released for ‘medical reasons’, there is no good record of what those reasons are, beyond a clear notation nothing ‘new’ happened.

[42] In considering the impact of the VAC note, and in assessing the whole idea of aggravation, I ask myself the following two questions.

[43] First, does the plaintiff plead an in-service injury, or allege that something was done during her term, to aggravate an old injury, beyond the triggers to her anxiety and PTSD? She doesn’t. She says that, based on what happened before enrolment, she can’t continue in her employment. She had hoped she could, but it didn’t work out.

[44] Second, if we were to remove all reference to anything that occurred during her service, would it impact, add to, or change the nature of her claim? The answer is no. None of the information DND stresses during argument impacts anything relative to the claim. As a private citizen she was assaulted by a military officer. She claims this caused her psychological harm. Nothing about her service changes this. The reason for her attendance with Wilks, and the fact she ultimately did enroll in the military, is the inescapable context to this case, but it doesn’t alter the nature of the claim. It has no bearing on anything other than to explain why she is not now in the military.

[45] She was not sexually assaulted while a member. She is not claiming damages for anything that occurred while she was a member.

[46] As to her request for help in 2014, and the receipt of the Application Kit, I find this to be immaterial.

[47] Section 9 of the CLPA does not operate to bar this claim as neither a pension or compensation is payable to her on account of an injury, damage or loss, that falls within the confines of the Compensation Act.

[48] DND’s motion is dismissed. This action can proceed.

[49] If the parties cannot agree upon costs, I will receive written submissions. These shall not exceed three pages in length, and there will be no attachments beyond a costs outline. The plaintiff has 30 days to serve and file. DND has 40 days.

“Justice J. C. George”

Justice J. C. George

Date: October 25, 2016