Court File and Parties

COURT FILE NO.: CV-19-0000051-0000 DATE: 20210316

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

RICHARD JAMES TWELVES Self-Represented Plaintiff

• and -

THE DEPARTMENT OF NATIONAL DEFENSE AND THE CANADIAN ARMED FORCES James Schneider, for the Department of National Defence Defendant

HEARD: February 23, 2021

REASONS FOR DECISION ON MOTION

THE HONOURABLE JUSTICE L. C. SHEARD

Preliminary Issue:

[1] On consent, I order that the title of proceedings be corrected to read as follows:

Richard James Twelves v. The Attorney General of Canada

[2] Notwithstanding the above, for the purposes of these reasons, I use the parties’ names as originally pleaded.

Nature of the Motion

[1] The defendant, the Department of National Defence (“DND”), seeks an order 1) striking out the plaintiff’s statement of claim issued December 5, 2019 (the “Claim”) as against the DND; and 2) denying the plaintiff leave to amend the Claim.

Issue One: should the Statement of Claim be struck?

[2] The DND’s motion, dated September 23, 2020, is brought under rr. 21.01(1)(b) and 25.06(1) of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194.

[3] Rule 21.01(1)(b) permits a party to move to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. No evidence is admissible on a motion brought under r. 21.01(1)(b).

[4] Rule 25.06(1) requires that every pleading contain a concise statement of the material facts on which the party relies for the claim.

[5] The Claim consists of the following one paragraph:

1. The Plaintiff Claims: A. Wrongful Dismissal B. Constructive Dismissal C. Lost benefits - from January l, 2018 until normal date of retirement at age 65: D. Payment of lost wages - from date of removal as Commanding Officer (CO) until normal date of retirement at age 65 in accordance with pay as a CO including any increases to the wage scale; E. Payment of lost pension credits - from January I, 2018 until normal date of retirement at age 65; F. Lost benefits - from January l, 2018 until normal date of retirement at age 65; G. Punitive Damages in the amount of one hundred thousand dollars ($100.000.00); H. Loss of companionship and assistance for Deborah Lynn Twelves. wife of the Plaintiff in the amount of one hundred thousand dollars ($100,00 0.00); I. Costs on a solicitor/Client basis for all costs of this action; J. Any and all other relief as this honourable court feels is just under the circumstances; and K. Damages in the amount of one hundred and fifty thousand dollars ($150,000.00) for Malicious Prosecution.

[6] The Claim is clearly deficient: it contains no facts. The Claim does not comply with r. 25.06(1). Mr. Twelves acknowledges that the Claim is deficient but has not put forth an amended statement of claim that complies with r. 25.06(1). Rather, Mr. Twelves explains and defends his non-compliant pleading on the basis that until his grievance with the Canadian Armed Forces (“CAF”) has concluded, he is not in a position to provide the facts material to the Claim.

Disposition: Claim Struck Out

[7] The Claim discloses no reasonable cause of action and is hereby struck out in its entirety.

Issue two: Should the plaintiff be granted leave to amend the Claim?

[8] After the DND brought this motion, Mr. Twelves served a factum and a Notice of Constitutional Question. The relief claimed by Mr. Twelves in the Notice includes an order granting him leave to amend the Claim once his grievance with the CAF has concluded, and also allowing him to include claims under ss. 2(d), 7, and 15 of the Canadian Charter of Rights and Freedoms.

[9] Notwithstanding that no evidence is to be filed on a motion brought under r. 21.01(1)(b), to understand Mr. Twelves’ position on the motion and his Notice, it was necessary to read and consider the factual allegations contained in the factum and the Notice.

[10] The DND filed a factum supporting its motion and a Reply to Mr. Twelves’ Notice. The DND takes the position that the Claim should be struck out without leave to amend on the basis that Mr. Twelves’ proposed (future) amendments, alleging violations of his rights under ss. 2(d), 7 and 15 of the Charter, are “doomed to fail”.

Background

[11] From the facta and oral submissions, I understand that the alleged facts underlying the Claim include the following:

a) Mr. Twelves identifies himself as a Captain and member of the Canadian Armed Forces (“CAF”), Cadets Orders and Administrative Service (“COATS”); b) Mr. Twelves states that he was removed as Commanding Officer of 611 Harvard Squadron, Royal Canadian Air Cadets, Dunnville, Ontario on December 6, 2017; c) Mr. Twelves also states that he was “officially released” from the CAF on January 19, 2019 and that since his 60th birthday on March 31, 2020 he has received six pension cheques. He describes this as “Just another prime example of the right hand having no idea what the left is doing” (Mr. Twelves’ factum, at para.6); d) Mr. Twelves believes that he was removed as Commanding Officer “improperly and without justification”. Mr. Twelves acknowledges that he was required to seek redress for his “improper” removal using the grievance procedure prescribed by the National Defence Act, R.S.C., 1985, c. N-5, and governed by the Queen's Regulations and Orders for the Canadian Forces (“QR&O”); e) Mr. Twelves did grieve his removal and received a decision from the Initial Authority, from which he appealed to the Final Authority. He states that he has not received a decision from the Final Authority; f) Mr. Twelves understands that when he has received a decision from the Final Authority, he has further recourse to the Federal Court; g) Mr. Twelves’ principal complaint appears to be that he brought his grievance three years ago and the Final Authority has not yet released a decision and he knows of no mechanism to require a decision from the Final Authority; h) Mr. Twelves was concerned that the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, might apply to any claim he might have to sue the CAF and/or the DND for constructive and/or wrongful dismissal and states that he issued the Claim to preserve his rights “solely to meet the 2-year time limit”, believing that it is better to “[S]eek forgiveness, not permission”; and i) Mr. Twelves asserts that it would be “improper” for him to add any information [material facts] to the Claim while his grievance is incomplete; that it would be premature to set out pleadings based on “conjecture and/or misleading evidence”. He blames his situation on the CAF and the “ridiculous, unfair, improper and unprofessional manner in which the CAF deals, or perhaps fails to deal, with its grievances”.

Notice of Constitutional Question

[12] In Mr. Twelves’ Notice of Constitutional Question dated October 26, 2020, he indicates his intention to question the constitutional validity of, or to claim or remedy under s. 24(1) of the Charter in relation to, an act or omission of the Government of Canada in the use of and application of “at the pleasure of”.

[13] In his Notice, Mr. Twelves claims the following additional remedies:

i) a declaration that the words “at the pleasure of” violate ss. 2(d), 7, and 15(1) of the Charter, should Mr. Twelves be considered to be a member of the CAF and the CAF is to be considered as one unit for the purposes of the constitutionality of the application of the phrase “at the pleasure of”; ii) leave to amend the Claim; iii) leave to continue the Claim, as amended; iv) that the “constitutionality of no time limits applied to the grievance process for the CAF be brought under review and amended to reflect a proper and fair limit”; v) that the “Notice of Constitutional Questions be accepted and applied to the” current court file; and vi) if applicable, to be awarded his costs on a solicitor/client basis.

[14] Mr. Twelves disputes the position taken by the DND that members in the CAF serve “at the pleasure of the Queen” and seeks to distinguish members of the CAF from COATS members.

[15] Mr. Twelves asserts that members of the CAF are treated differently (better) than members of COATS, who receive different (lesser) training and benefits; do not receive yearly personal evaluations or access to career counselling; are not given positions of authority; and have no jurisdiction over regular force or primary reserve. For those reasons, Mr. Twelves claims that COATS’ members should not be limited in their recourse against the CAF to the grievance procedure prescribed by the National Defence Act and the QR&O.

[16] In support of the relief claimed, Mr. Twelves asserts that the words “at the pleasure of” and the limitations on his rights to seek recourse for his alleged wrongful or constructive dismissal are in violation of ss. 2(d), 7, and 15(1) of the Charter.

[17] The applicable Charter sections read as follows:

2. Everyone has the following fundamental freedoms: (d) freedom of association.

3. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

4. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Alleged Section 2(d) Charter Violation

[18] In Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3, at para. 66, the Supreme Court of Canada explained the three classes of activities that are protected under s. 2(d) as the following:

(1) the right to join with others and form associations; (2) the right to join with others in the pursuit of other constitutional rights; and (3) the right to join with others to meet on more equal terms the power and strength of other groups or entities.

[19] I understand Mr. Twelves’ claims are that, (1) as a COATS member, he has no right to sue for wrongful dismissal but is bound by same grievance procedure that applies to other members of the CAF, who enjoy greater benefits than those offered to COATS members, and (2) that the grievance procedure violates his rights, in that it does not impose any time limits upon the tribunal for making a decision.

[20] None of Mr. Twelves’ claims would appear to fall into any of the three classes of activities identified in Mounted Police.

[21] I conclude that s. 2(d) has no application to this case and that Mr. Twelves’ proposed claim under that ground is doomed to fail.

Alleged Section 7 Charter Violation

[22] In the context of the Claim, Mr. Twelves does not assert that the applicable provisions of the National Defence Act and QR&O impact his life, liberty or security of the person. The jurisprudence is clear that a person’s livelihood, economic interests, or property rights are not protected by s. 7 of the Charter: see Mussani v. College of Physicians & Surgeons of Ontario (2004), 74 O.R. (3d) 1 (C.A.).

[23] I can find no basis for Mr. Twelves’ assertion that the CAF or the DND has breached his s. 7 rights and conclude that his claim under that ground is doomed to fail.

Alleged Section 15 Charter Violation

[24] As set out above, Mr. Twelves claims that as a member of COATS, he was discriminated against because he was not provided with the same training or benefits provided to Regular Force Members and Primary Reserve Members.

[25] In oral submissions, Mr. Twelves acknowledged that the alleged discrimination against him as a member of COATS is not one of the enumerated grounds under s. 15, but submitted that the differential treatment of COATS members is analogous to the discriminatory treatment of women in the military.

[26] Mr. Twelves’ argument appears to overlook the fact that the discriminatory treatment of women - i.e. on the basis of sex - is an enumerated ground under s. 15.

[27] The Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at para. 13, explained that an analogous ground is a “personal characteristic that is immutable or changeable only at unacceptable cost to personal identity.”

[28] The DND submits that Mr. Twelves’ position in COATS or the CAF is not “a personal characteristic which is immutable or changeable only at unacceptable cost to personal identity, analogous to race, national or ethnic origin, religion, sex, age or mental or physical disability.”

Analysis of Application of S.15 of the Charter

[29] I do not accept Mr. Twelves’ assertion that such differential treatment would breach his s. 15 Charter rights: Mr. Twelves has not established that any discriminatory treatment was on the basis of a prohibited ground enumerated under s. 15 or on an analogous ground. In making that determination, I make no finding as to whether members of COATS were treated differently from members of the Regular Forces.

[30] I conclude therefore, that Mr. Twelves’ claim under that ground is doomed to fail.

Statutorily Prescribed Grievance Procedure

[31] The DND submits that, in addition to its position that Mr. Twelves’ Charter claims are doomed to fail, the Claim is premature because Mr. Twelves must first exhaust the statutory grievance scheme.

[32] In oral submissions, Mr. Twelves stated that, while he felt that his Charter rights had been violated because, as a member of COATS, he did not have the right to pursue a claim for wrongful dismissal in the Superior Court, he acknowledged that there was “no question” that he did not have the right to sue in the Superior Court until his grievance was completed: see Ouellette v. Attorney-General of Canada, 2012 ONSC 7375, at para. 9.

[33] The position taken by the DND and Mr. Twelves’ acknowledgement that the Claim is brought prematurely, is consistent with the jurisprudence: see Moodie v. Canada (National Defence), 2008 FC 1233, at para 1. As stated in Moodie, the National Defence Act and the QR&O “establish an exclusive statutory scheme for the resolution of service-related disputes between members of the Canadian Armed Forces (CAF) and Her Majesty the Queen”.

[34] Similar to the circumstances of the plaintiff in Moodie, in this case, Mr. Twelves has availed himself of the grievance procedure to seek redress for his alleged wrongful termination or removal from office. As concluded by the court in Moodie, I too conclude that Mr. Twelves is not entitled to pursue a claim in this court but first must exhaust the grievance procedure which, if appropriate, may include a request for judicial review of the resulting decisions: see Moodie, at para. 47.

[35] In Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, 447 D.L.R. (4th) 543, at para. 19, the Supreme Court of Canada stated, in part, the following:

It is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings. This is because such claims present "no legal justification for a protracted and expensive trial". [Citations omitted.]

[36] I have concluded that all of Mr. Twelves’ Charter claims are “doomed to fail” and are not issues worthy of trial, nor are they prima facie meritorious. On that basis, Mr. Twelves ought not to be granted leave to amend the Claim.

Disposition of the Motion

[37] For the reasons set out above, the motion is granted. I order that the Claim be struck out without leave to amend.

Costs

[38] As the successful party on this motion, the DND, corrected to be identified as the Attorney General of Canada (the “AG”), is presumptively entitled to its costs.

[39] I would urge the parties to agree on costs but if they cannot do so, then costs submissions may be made as follows:

1. within 14 days of the date of the release of this decision the AG shall serve and file its written costs submissions, not to exceed 3 pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers; and
2. Mr. Twelves shall serve and file its responding submissions of no more than 3 pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers, within 10 days of the service upon him of the AG’s costs submissions.

[40] If no submissions are received within 24 days of the date of the release of this decision, the parties will be deemed to have resolved the issue of the costs and costs will not be determined by me.

L. Sheard J.

Released: March 16, 2021