Date: 19980612
Docket: T-2082-94
OTTAWA, Ontario, this 12th day of June, 1998.
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
116 427 345 CPL HAWCO, S.T.
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent.
UPON application by the applicant for judicial review of, and an order setting aside, the decision of the Director General Personnel Career Other Ranks, dated August 8, 1994, whereby a recommendation for release from the Armed Forces was approved and for an order re-instating the applicant to the Canadian Armed Forces with full pay and benefits, and with costs on a solicitor-client basis;
UPON hearing counsel for both parties at Halifax on December 8, 1997, and again, with further submissions, on March 9, 1998, when decision was reserved, and upon consideration of submissions made at the hearings, and in writing;
O R D E R
IT IS HEREBY ORDERED THAT:
1. The application is dismissed.
2. No order is made in relation to costs, a matter on which no submissions were made by the parties.
Judge
Date: 19980612
Docket: T-2082-94
BETWEEN:
116 427 345 CPL HAWCO, S.T.
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent.
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review brought by a former member of the Armed Forces, challenging the decision by which he was released from service. By Originating Notice of Motion, filed on September 7, 1994, the applicant seeks relief in various forms. He seeks orders in the nature of certiorari, quashing and setting aside the decision of the Director General Personnel Career Other Ranks who approved the decision to release the applicant from the Armed Forces, an order reinstating the applicant to the Canadian Armed Forces with full pay and benefits from the date of his release, and an order for costs on a solicitor-client basis.
Background
[2] The applicant became a member of the Regular Canadian Forces on April 15, 1985. From the year of his enlistment on, the applicant had some behaviourial difficulties, including misuse of alcohol, assaults, absence without leave, and rude behaviour. On November 5, 1992, a report concerning abuse of alcohol by the applicant was completed, and it recommended the applicant's release from the military "in the best interest of the forces".
[3] On November 12, 1992, the applicant received a Notice of Intent to Recommend Release, completed by his Commanding Officer on November 9, 1992. The Notice alleged personal weaknesses and impairing behaviour within the meaning of the applicable regulations. On November 20, 1992, the applicant filed a notice of objection to being released from the Armed Forces and gave his reasons for this objection. On December 14 and 16, 1992, the Commanding Officer and the Base Commander of CFB Lahr, where he was stationed, in turn completed a Recommendation for Compulsory Release of Mr. Hawco. Subsequently, on December 18, 1992, the Base Commander completed additional observations dealing principally with the applicant's objections to the notice of intent that he be released. These observations were forwarded for consideration of the Career Review Board, in Ottawa, but were not seen by the applicant until February 1993.
[4] On January 19, 1993, DND Headquarters in Ottawa acknowledged receipt of the Recommendation for Compulsory Release but requested additional information. Additional information was sent to Ottawa by the Base Personnel Officer on January 27 and February 25, 1993. The Career Review Board at Headquarters advised the Base Personnel Officer, in a letter dated February 26 and received March 1, 1993, that the release was approved. The applicant was notified of this decision between March 1 and March 10 and was informed that he would be released as of April 14. Subsequently, he apparently remained a member of the Armed Forces until May, 1993.
[5] The record includes a request dated January 25, 1993, by then Corporal Hawco, the applicant, for the assistance of an Assisting Officer in the matter of his redress of grievance. The record also includes a written request by the applicant dated March 8, 1993, concerning his redress of grievance about his release from the service, requesting a copy of all documentation presented to the review board.
[6] Throughout this period, the applicant sought, but was unable to obtain copies of the information sent to Ottawa. Through the assistance of his Assisting Officer he obtained the Base Commander's December 18, 1992 observations but he was unsuccessful in obtaining the other information. Eventually, the applicant obtained much of the material, through the process of the Privacy Act, well after the first decision to dismiss him was made in March 1993.
[7] The applicant challenged the decision that he be released, in Court file no. T-2495-93, on the basis that a certain officer sitting as the Career Review Board lacked the requisite authority to release the applicant. The respondent agreed with this contention and the Originating Notice of Motion was dismissed with the consent of both parties on February 6, 1994, on the understanding the recommendation would be reconsidered. Then, without allowing the applicant an opportunity to be heard, the Assistant Deputy Minister (Personnel) of the Department of National Defence issued an order dated March 8, 1994, suspending the applicant and terminating the applicant's pay after May 26, 1993. The applicant sought documentation provided to the Assistant Deputy Minister on which the latter's decision was based, but the response on behalf of National Defence Headquarters was that no such documentation existed.
[8] The applicant was advised on June 9, 1994 by the Director Personnel, Legal Services that a second Career Review Board would consider the applicant's suitability for continued service. The applicant's counsel was advised on June 27, 1994 by the Director Personnel, Legal Services that the Board would not have any information before it other than that already provided to the applicant and that it would not have information related to the applicant's previous judicial review proceedings about the decision that he be released. Further, the applicant was advised that the Board would be composed of three members, including a "PCOR", or Personnel Careers Other Ranks officer.
[9] In a letter dated March 16, 1994, the Chair of the Board contacted the applicant's counsel and made reference to the judicial review proceedings. On August 2, 1994, a two-member Board, which lacked a PCOR representative, recommended that the applicant be released because of his abuse of alcohol. The Board considered, inter alia, the Notice of Intent to Recommend Release, the applicant's objections, the Base Commander's recommendations, and submissions made by the applicant's counsel in a July 26, 1994 letter. The applicant was not invited to attend the Board or to be represented before the Board, and he was not advised of its recommendations until this application for judicial review was filed on September 7, 1994.
[10] In the meantime, the Director General Personnel Career Other Ranks approved the release of the applicant, as recommended by the Career Review Board. This decision was communicated to the applicant's counsel by the Chair of the Board, by letter dated August 18, 1994. The applicant had no opportunity to address the Director General directly, either orally or in writing.
[11] Following the hearing, in December 1997, of this application for judicial review, while this decision was reserved, the Court, of its own motion, sought further submissions of counsel for the parties about the implications of the decision in Anderson v. Canada[1], concerning judicial review proceedings in circumstances where an internal grievance process was not completed. Further oral and written submissions on that aspect were thereafter received from counsel for the parties in March 1998.
Analysis
[12] Several issues arise from the arguments of the parties in this application. First, should this application be precluded by reason of the applicant's failure to exhaust the military's internal grievance procedure? Second, what material was on the record relied upon by the Director General? Third, was there a breach of the duty of fairness?
[13] With regard to the first issue, as the respondent correctly notes, consistent with the decision of the Court of Appeal in Anderson, there are authorities standing for the proposition that the Court should not entertain an application for judicial review when internal grievance procedures, as here provided for in the Queen's Regulations & Orders, have not been exhausted.[2] Until the Federal Court of Appeal's decision in Anderson v. Canada, dated October 24, 1996, it was not entirely clear[3] whether the failure to exhaust an internal grievance process, if adequate, should bar review by the Court. Here the applicant's Originating Notice of Motion was filed in September 1994, well before the determination in Anderson. That decision of the Court of Appeal was not fully addressed by counsel in their initial argument and thus they were invited to make further submissions.
[14] For the respondent, in reliance on Anderson and supporting cases, it is urged that the Court should dismiss the application for judicial review since the applicant did not exhaust the internal grievance process. While he is now out of time to pursue his grievance as of right, counsel for the respondent advises that the applicant might still pursue the grievance process and that National Defence Headquarters would be prepared to designate a responsible officer, in place of his commanding officer at Lahr, to consider within that officer's discretion whether in the interests of justice he should deal with any grievance the applicant might now seek to pursue. For the applicant, it is urged that denying judicial review without considering the merits, dismissing this application on the preliminary ground that the grievance process was not fully pursued, would be prejudicial to the applicant. The issue was not directly raised earlier over the years since the original application was filed in 1994. There is no assurance of any review of the situation if the applicant were to seek to re-institute a grievance, since it is a matter of discretion whether a grievance, out of time to be pursued without approval, should now be considered.
[15] On the record, it appears that failure to pursue his grievance can hardly be attributed entirely to the applicant except in the most formal sense. He did seek to initiate the process, filing objections to his release with his Commanding Officer, who did not respond to him. He did seek an Assisting Officer to assist and one was apparently arranged after the recommendations at Lahr were made. While the grievance process does provide that failure to respond to a grievance means that the griever may pursue the matter at the next higher level, there is no evidence that this was brought to the attention of the applicant or his Assisting Officer, or that either of them was aware of it. In short, it seems to me that no one concerned with the process of his involuntary discharge or review of his career, was concerned with facilitating the grievance process.
[16] In these circumstances, I am not prepared to dismiss this application on the basis that an alternative remedy existed. It is nearly four years since the application was filed. In the interest of justice to the parties the most expeditious disposition of the matter at this stage, in my opinion, is to consider the application on its merits. If the application is allowed, the matter would be referred for reconsideration on its merits. That is essentially the objective of pursuing the applicant's concerns through the grievance process. If the application is not allowed that decision has no bearing on the merits of the applicant's claim and those may still be reviewed if the grievance process were still to be followed.
[17] Turning to the other issues raised in this application, arrangements for the dismissal of members from the military are set out in the Queen's Regulations and Orders (Q.R. & O.) and Canadian Forces Administrative Orders (CFAO), made pursuant to ss. 12 and 18 of the National Defence Act, R.S.C. 1985, c. N-5. In Q.R. & O. Article 15, provision is made for release, including involuntary release, of members of the forces. CFAO 15-2 designates the releasing authority for various ranks and reasons for release, and CFAO 19-31 provides for administrative procedures to be followed in cases where there is misuse of alcohol by a member, including release for that condition where appropriate. On the basis of these provisions, it is uncontested between the parties that the appropriate decision-maker was the Director General Personnel Careers Other Ranks (DGPCOR) at National Defence Headquarters, and that person made the decision which the applicant now seeks to question. There is no doubt, in my view, that such a decision of the DGPCOR may be subject to review by this Court by virtue of s.18(1) of the Federal Court Act.
[18] In oral argument before me counsel for the applicant noted, rightly, that the certified record provided by the respondent in this matter is described as "documents before the Career Review Board at the time that the decision was made which is currently the subject of a judicial review application". No material purporting to be that which was in front of the Director General is before the Court. The failure of the respondent to provide the Court with copies of the material that was before the decision-maker, as is required by the Rules, is said by the applicant to constitute a reviewable error, as neither the applicant nor the Court is to be put in the position of not knowing and simply guessing what material was before the decision-maker.
[19] The respondent, for its part, points to correspondence, on the record, from the Director Personnel Career Administration Other Ranks, dated March 16, 1994 several months before the decision here at issue, tabulating the material that would be before the Career Review Board and before the Director General Personnel Careers Other Ranks. This material, it was said, would include any written representations made by the applicant. As counsel for the respondent concedes, some of the material that, according to this correspondence was to be before the Board, does not in fact appear in the certified record. Moreover, the letter of March 16, and the material certified as having been before the Career Review Board, do not fully serve the requirement, under the Court's Rules, of providing the record that was before the decision-maker, the DGPCOR, when the decision was made.
[20] The consequences of the failure on the part of a decision-maker to make available the record in accord with the Court's rules has been commented upon in other cases. In Kong v. Canada (Minister of Employment and Immigration)[4], Madame Justice Reed wrote as follows:
What is more, although the record which was sent to the Court is certified as a true copy of all the material which was before the Board, I can find no copy of the article from which the quote was taken included therein. Thus, I cannot consider the context from which the quote was taken. It would appear from one of the indexes on the file that there is more material than just this one article which is missing from the certified record. A certified record should include all the evidence which was before the Board. The absence of such can itself be grounds for a reversal of the decision.
[21] In Murphy v. Canada (Attorney General)[5], it is not clear whether a certified record of materials before the decision-maker, the Chief of the Defence Staff in that case, was produced. In that case, the decision to release the applicant from the military was made by the Chief of Defence Staff on the basis of the recommendations of a subordinate, following recommendations of a Career Review Board. The applicant brought an application for judicial review on the basis that he had not had opportunity to know and to comment upon the recommendation of this subordinate. On the facts, the applicant had filed an Objection to Release with extensive submissions and attachments which the Chief of Defence Staff said he had examined, and the facts relied upon by the subordinate officer were known to the applicant and were found in his records. In dismissing the application, Rothstein J. wrote:
The applicant has not demonstrated that his submissions were not considered by the CDS. On the contrary it is clear that the CDS had the applicant's material before him. By his memo to the ADMPers [Assistant Deputy Minister Personnel] it is apparent he considered the reason for the applicant's release on its merits.
[22] In Kong, it was clear the decision-maker relied on evidence that was not on the certified record. In Murphy, though no full record may have been produced, there was evidence pointing to submissions of the applicant that had been before, and considered by, the decision-maker. In this case, there is no evidence of reliance by the decision-maker on material not in the record. I note, however, that the applicant is not alleging, as I understand him, that the decision-maker did not consider the submissions he made originally for consideration of the Career Review Board, but he does point to the information gap, for himself and for the Court, in the absence of the complete record certified in accord with the Rules.
[23] In my view, in the absence of any evidence that the decision-maker either failed to consider material that should have been before him, or considered material that should not have been before him, the failure on the part of the decision-maker to provide a certified record in accord with Rule 1613 does not, in itself, warrant automatic quashing of the decision in this case. In my opinion, the circumstances here warrant the inference that submissions on behalf of the applicant, submitted for the consideration of the Career Review Board, were before the DGPCOR when he made his decision that the applicant be released. In advance of making those submissions the applicant had been advised that any submissions would be before the DGPCOR when considering any recommendation of the Career Review Board. The form signed by the DGPCOR, signifying his decision, is a form originating with the Career Review Board. It contains a list of documents before the Board, including submissions of the applicant's counsel, and it has the signatures, with recommendations of the members of the Board, before the space for the decision and the signature of the DGPCOR. When signed by the latter the form has signatures of the Board members and of the DGPCOR, with the decision of each and a list of the documents before the Board.
[24] The applicant's principal submission, as I understand it, is that procedural fairness requires that the applicant know the case against him that is submitted to the Director General, and that he be permitted to make representations. The applicant had no opportunity to make representations directly to the DGPCOR. He was not informed of the recommendations being made by the Career Review Board in advance of the decision. He was obliged to make his submissions to the Career Review Board, and it is urged that the lack of direct access to the Director General failed to meet requirements of procedural fairness.
[25] In addition, the applicant objects to the hearing before the Career Review Board, both on the basis that he never agreed to the procedure chosen and persistently complained that it was unfair, and on the basis that the composition of the Career Review Board was not as set out in advance in correspondence with counsel for the applicant. As I understand the applicant's argument, it is urged that the presence on the Board of one Colonel Brown gives rise to a reasonable apprehension of bias. That member of the Board was familiar with the earlier process for judicial review, including efforts to settle the matter, and with the suspension of pay and allowances for the applicant, pending the outcome of the decision of the Director General. That knowledge on the part of one member of the Board, it is urged, creates the apprehension of bias.
[26] The respondent submits that the standards of procedural fairness were met in this case. The Career Review Board was properly constituted and had the proper material before it. It is submitted that the applicant was fully aware of the reasons for his recommended release and that his lawyer submitted detailed objections to this release. There was procedural fairness afforded in this case, it is urged, through the Notice of Intent to Seek Release, the applicant's detailed objections, and the representations of his lawyer, all of which were before the Career Review Board, and are also said to have been before the Director General, though there is no direct evidence of the documents before him either by the filing of a certified record of materials before the DGPCOR or by affidavit.
[27] In support of his view, the applicant cites Duncan v.Canada (Minister of National Defence)[6], a decision of Mr. Justice Muldoon dealing with a court martial on a criminal charge, where His Lordship held that the applicant must have "direct access to the mind or conscious understanding of the decider, the adjudicator". Where the applicant's only opportunity to make submission was through a subordinate, the applicant was faced with an official process that did not meet the appropriate standard of fairness. Muldoon J. wrote:
The appellant/applicant's right to fair procedure, to fundamental justice to benefit of audi alteram partem are simply denied in this procedure, in which he is obliged to make his submissions to the decision maker through the offices and judgment of the decision maker's subordinate assistant official. Honourable as the [subordinate] is, as one would surely expect, at least most of the time, he or she is distinctly not the appellant's advocate. In acting as the [subordinate] does in such matters, he or she effectively obstructs the appellant from direct access to the [decision maker] who is, in turn, blocked from "hearing" from the appellant although designated to make the ultimate decision...
[28] Duncan was distinguished in Murphy, where Mr. Justice Rothstein held that a notice of objection to a release recommendation made by a Career Review Board was sufficient to meet the requirement that the applicant have direct access to the decision-maker. In the case at bar, the applicant was not informed of the Career Review Board's recommendations and had no opportunity to produce a notice of objection. As a consequence, the final contact the applicant had with the decision-makers involved in the process was via submissions made to the Career Review Board, which was not the ultimate decision-maker, but which recommended action to the decision-maker, the DGPCOR.
[29] In my view, Miller v. Director General Posting and Career Officers et al[7] stands for the proposition that the standard of procedural fairness in administrative processes leading to the dismissal of a member of the Armed Forces may be met without direct access of the person concerned to the decision-maker. The standard may be different than that enunciated by Mr. Justice Muldoon in Duncan as appropriate for courts martial. In Miller, Mr. Justice Denault was asked to review a decision of the Director General, Postings and Career Officers to release the applicant, an officer in the Forces, following a recommendation to that effect by the Career Review Board. In discussing whether the decision should be interfered with on the grounds of procedural unfairness, Denault J. held that procedural fairness demands that the applicant be given an opportunity to be heard by making submissions but that does not require an oral hearing before the Career Review Board. Further, it was not fatal to the decision that the decision slip and briefing note, i.e. the recommendation, prepared by the Career Review Board, were not disclosed to the applicant before the decision-maker acted on the Board's recommendation, as the applicant had already received the materials relied upon by the Board, had ample opportunity to make submissions in writing, and was not prejudiced by the non-disclosure.
[30] While apparently in Miller there was no argument that the inability of the applicant to make submissions directly to the decision-maker breached procedural fairness, Denault J.'s determination that there is no error where the applicant is not informed of the Career Review Board's recommendation, by implication, suggests that there is no error where the applicant is not given an opportunity to make submissions directly to the decision-maker before the latter acts on the Board's recommendation. In view of that determination by my colleague, I conclude that procedural fairness in the circumstances of this case does not require that the applicant be given an opportunity to make submissions directly to the decision-maker, so long as he or she is able to make submissions to the Career Review Board, and those submissions are before the decision-maker.
[31] With regard to the applicant's arguments concerning the composition of the Board, that composition is not set out in law. In Miller[8], Denault J. commented as follows on the impact of a failure on the part of the Career Review Board to conform to the composition anticipated in the Operating Procedures Manual:
The applicant submits that para. 5 of the Operating Procedures Manual above provides that the Career Review Board should be composed of the Chairman (DPCAO - Director Personnel Career Administration Officers), the Secretary (DPCAO 2-3 - Director Personnel Career Administration Officers) and three members (DMMD, DPRC, PCO). Counsel submits that these provisions are imperative.
...
...the process through which in some cases the DGPCO seeks recommendations from the Career Review Board is only provided for in the Operating Procedures Manual. There was no evidence regarding the source of the authority for issuing the Operating Procedures Manual. Also, while the applicant's arguments regarding the mandatory nature of para. 5 regarding the composition of the Career Review Board are correct, the same cannot be said of the procedures in general which, in my view, provide for considerable discretion...The Operating Procedures Manual is no more than administrative directions with no legal force or effect. Therefore, a failure to comply with them cannot invalidate the decision of the DGPCO to recommend the applicant's release.
[32] On this basis, I am of the view that there was no legal requirement that the Board be composed of certain members. It was not argued, and I do not believe that the correspondence to the applicant relating to the proposed composition of the Board gave rise to any claim of a legitimate expectation about the Board's composition that would justify intervention by this Court. In my view, unfortunate as it may be that the advice about the composition of the Board was not followed, there is no evidence the applicant would have behaved differently had he been aware that his case would be considered by a two-member Board rather than by three members as indicated in advance would be the case.
[33] Finally, with respect, I do not agree that there is any basis for arguing that there was a reasonable apprehension of bias arising from the inclusion on the Board of Colonel Brown. The oft-cited definition of "reasonable apprehension of bias" is that enunciated by Mr. Justice de Grandpré, dissenting, in the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board[9]. Although he wrote only for himself and two other judges, the test stated by de Grandpré, J. was in effect adopted by the majority in that case.[10] Here is that test:
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. ...the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly".
In MacBain v. Cdn. Human Rights Commission[11], the Federal Court of Appeal unanimously adopted and ratified this passage as the "proper test to be applied when considering the issue of reasonable apprehension of bias".
[34] Where allegations of bias or a reasonable apprehension of bias are made, courts have held that there must be some evidence upon which a reasonable person could conclude that the decision-maker will not bring an impartial mind to bear upon the issue. Suspicion is not enough.[12] There must be evidence upsetting the presumption that the decision-maker is acting impartially. More than a mere suspicion, or the reservations of a "very sensitive or scrupulous conscience," is required to displace that presumption.[13]
[35] I do not agree with counsel for the applicant that bias can be inferred simply from Colonel Brown's awareness of the procedural history leading up to the second Career Review Board. This knowledge, in the absence of more compelling evidence of possible bias by the Colonel is not enough in itself to lead a reasonable observer, knowing the circumstances, to conclude that the applicant would not be dealt with fairly, that is, that the Board or the Colonel in question serving on it, would not decide the matter fairly.
Conclusion
[36] I summarize my conclusions. While the respondent in this case failed to meet the requirements of Rule 1613 regarding the production of a certified record of materials before the decision-maker, there is no evidence suggesting that the decision-maker either relied on evidence not properly before him or that he failed to consider submissions on behalf of the applicant that he should have considered. From the circumstances evident in the record, I infer that those submissions were before the decision-maker when his decision was made. Failure to produce the record before the decision-maker does not, in itself, constitute a reviewable error, in the circumstances of this case where the grounds for his release were known to the applicant and he had an opportunity to file objections to those, and to file, for consideration of the Career Review Board and the DGPCOR, submissions opposing his involuntary release from the forces.
[37] Further, I find that there has been no breach of the standards of procedural fairness in this matter. In light of decisions of my colleagues in Murphy and in Miller, procedural fairness in the circumstances here did not require that the applicant be given an opportunity to make representations directly to the decision-maker, where the decision-maker acts in response to recommendations made by the Career Review Board and has before him the submissions of the applicant to that Board on the question that leads to a recommendation and thence to the decision here in question. Further, I find no reasonable apprehension of bias would appear to the reasonable observer aware of the circumstances, simply because one member of the Career Review Board, that made recommendations to the decision-maker, had knowledge of the earlier faulty process under the original application for judicial review.
[38] For these reasons, this application for judicial review is dismissed.
[39] I note again that this decision relates to alleged deficiencies in the process of decision-making, including the necessity to provide fairness in the procedure. This decision is made without reference to the merits of the decision that the applicant be released from the service. That is the subject matter of any grievance the applicant might have pursued under the process provided by the National Defence Act and the Q.R. & O., a process said at the hearing of this matter to be still open to him. Though consideration of any grievance would now be subject to the discretion of a designated officer, considering the justice of dealing with any grievance, on the advice of counsel for the respondent, the applicant may still file a grievance. The possibilities of the grievance process are not barred in any way by this decision which does not assess the merits of the decision that the applicant be released involuntarily.
[40] An Order goes dismissing this application for judicial review. No Order is made in regard to costs, though requested in the originating motion, since no submissions were heard on the matter.
W. Andrew MacKay
Judge
OTTAWA, Ontario
June 12, 1998.
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2082-94
STYLE OF CAUSE: 116 427 345 CPL HAWCO S.T. v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
DATE OF HEARING: DECEMBER 8, 1997 and
MARCH 9, 1998
REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE MACKAY
DATED: JUNE 12, 1998
APPEARANCES:
MR. DAVID BRIGHT, Q.C. FOR APPLICANT
MR. A.R. PRINGLE, Q.C. FOR RESPONDENT
SOLICITORS OF RECORD:
BOYNE CLARK FOR APPLICANT DARTMOUTH, N.S.
DEPUTY ATTORNEY GENERAL OF CANADA FOR RESPONDENT OTTAWA, ONTARIO
[1]. (1997), 141 D.L.R. (4th) 54 (F.C.A.)
[2]. See, for example, Dressler v. Canada (1989), 30 F.T.R. 13, Couture v. Canada (1997), 136 F.T.R. 56, Pilon v. Canada (1996), 119 F.T.R. 269, Villeneuve v. Canada (1997), 130 F.T.R. 134.
[3]. See, e.g., Gayler v. Director Personnel, Careers Adminstration, Other Ranks et al. (1994), 88 F.T.R. 241, where the issue was not fully canvassed, and Diotte v. Canada (1989), 31 F.T.R. 185.
[4]. (1994), 73 F.T.R. 204 at 211.
[5]. (1997), 131 F.T.R. 33 at 35.
[6]. (1990) 55 C.C.C. 28 at 43 (F.C.T.D.).
[7]. (1994), 76 F.T.R. 15.
[8]. Ibid., at 21, 22.
[9]. [1978] 1 S.C.R. 369 at 394.
[10]. See discussion in Pursley v. Canada (Minister of Employment and Immigration) (1989), 29 F.T.R. 204 at 208.
[11]. (1985), 62 N.R. 117 at 124 (F.C.A.).
[12]. Adams v. Workers Compensation Board (1989), 42 B.C.L.R. (2d) 228 (B.C.C.A.).
[13]. Committee for Justice and Liberty v. National Energy Board, supra note 9 at 394, per de Grandpré J., dissenting, cited with approval by the Federal Court of Appeal in Beno v. Canada (Commission of Inquiry into the Deployment of Canadian Forces in Somalia - Létourneau Commission), [1997] 2 F.C. 527 at 542.