Date: 19981116
Docket: T-1320-98
BETWEEN:
JEAN MARTIN LOISELLE,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The judicial review application, underlying this motion to strike out the application, is for review of the decision of Col. G. W. Nordick, Director of Military Careers, Department of National Defence, Ottawa, that Captain Loiselle, by reason of his training as a pilot, is subject to a restricted release policy. The Crown takes the position that the application ought to be struck out because Captain Loiselle has not exhausted all of his internal military grievance remedies.
[2] The Federal Court has, over the last several years, been faced with a number of similar applications by members of the military and, accordingly, by a number of similar motions to strike out by reason of a failure to exhaust the required military remedies. The outcome has been two lines of cases, with different results. However, the two lines of cases, typified on the one hand by Anderson v. Canada (Operations Officer, Fourth Maritime Operations Group) (1997), 141 D.L.R. (4th) 54 (F.C.A.) in which the application was struck out for failure to exhaust all military remedies, and on the other hand by Gayler v. Director of Personnel, Careers Administration, Other Ranks, National Defence Headquarters (1995), 88 F.T.R. 241 in which Mr. Justice MacKay apparently decided that the military grievance procedure was, by reason of a decision already made, a meaningless exercise and therefore allowed judicial review to proceed, are not inconsistent.
[3] A respondent bears a heavy obligation in seeking to have an application for judicial review struck out. In the present instance, counsel for the Respondent has not convinced me that this is an exceptional case and that the Applicant's application is so clearly improper as to be bereft of any possibility of success. The application for judicial review may proceed. This is not to say it will succeed, but that it is an application which could possibly succeed. I will now consider this in more detail, beginning with some pertinent facts.
FACTS
[4] Captain Loiselle, who is bilingual, joined the Canadian Forces pursuant to the Regular Officer Training Plan on 5 June 1987. At the time of his enrollment he signed a 13 page document, entitled "Programme De Formation D'Officiers De La Force Reguliere (PFOR) Resume Des Conditions De Service Et Des Reglements Militaires Pertinents". The English version, "Regular Officer Training Plan (ROTP), A Resume Of Pertinent Military Regulations and Terms of Service"), is also pertinent and particularly, in this instance, a section titled "Obligatory Service Following Graduation" which reads:
| In accordance with the terms of your engagement, you will be required to serve an obligatory period of service of 5 years regardless of occupation after graduation from a CMO. Candidates attending a civilian university requiring full subsidization are also required to serve an obligatory period of 5 years regardless of occupation after graduation. Candidates attending university requiring less than full subsidization would require to serve after graduation a period of 2 months for each month subsidized (based on 3 month academic year) with always a minimum obligations of three (3) years. (An Air Navigator is obligated to serve a minimum of four years and a Pilot a minimum of five years regardless of the period of subsidization.) |
The French version does not contain the final further parenthetic obligations applicable to an Air Navigator and to a Pilot.
[5] Captain Loiselle graduated from Royal Military College, Kingston, in May of 1992 and his Pilot's Wings 6 May 1994.
[6] In September of 1997, he requested a voluntary release and a transfer to a reserve unit, a request which was supported by his Commanding Officer. However, in due course, the request was returned endorsed by the Commanding Officer, to indicate that Captain Loiselle was under a restricted release policy until 5 May 1999.
[7] The next step Captain Loiselle took was a ministerial inquiry as to the application, to him, of the restricted release policy. This resulted in a letter, 25 November 1997, from Lieutenant General D. N. Kinsman, Assistant Deputy Minister for Personnel for the Department of National Defence. Lieutenant General Kinsman, writing on behalf of the Minister of National Defence, the Honourable Arthur Eggleton, denies any early release.
[8] Captain Loiselle, in his affidavit of 18 June 1998, sets out that he attempted to convince the military that he was never notified that his pilot training would result in an extension of his obligatory service time and that he tried to convince the military that the restricted release policy, referred to by Lieutenant General Kinsman, did not apply to him. It is his position and his understanding that his service obligations are those set out in the Resume Des Conditions De Service Et Des Reglements Militaires Pertinents" that he would be obliged to serve for five years after graduation from RMC Kingston and thus could apply for a voluntary release at the end of April 1997. To buttress this understanding he refers to his Personnel Record Resume, generated by National Defence Headquarters, that his obligatory service concluded 30 April 1997.
[9] The next pertinent document in Captain Loiselle's affidavit material is a military memorandum as to the restricted release policy, noting that there has been some uncertainty about the restricted release policy on the part of both unit and National Defence Headquarters Authorities and that "In some cases, based on such misleading advice, the concerned member made important and sometimes expensive commitments before a decision was rendered by D Mil C". But perhaps more pertinent, to Captain Loiselle's situation is the assertion that:
| REFS OUTLINE THE CURRENT RESTRICTED RELEASE POLICIES. THE ONLY AUTHORITY AUTH TO APPROVE EXCEPTIONS TO THE POLICY, INCLUDING VOLUNTARY RELEASE DURING THE INITIAL PERIOD OF SVC (THREE YRS), IS NDHQ/D MIL C |
Thus, it is clearly the Military's position that only the Director of Military Careers in National Defence Headquarters in Ottawa may authorize an exception to the restricted release policies in effect in July of 1997. The memorandum goes on to set out that the Military Authorities have made it clear that Canadian Force members will not suffer because of poor administration or bad advice on the part of either the chain of command or National Defence Headquarters.
[10] On 28 May 1998 the Director of Military Careers, National Defence Headquarters, Ottawa, formally denied Captain Loiselle's request for release, confirming that his earliest date of release would be 6 May 1999.
[11] Captain Loiselle appears not to have engaged the military grievance procedure, set out in section 19.26 of the Queen's Regulations and Orders (the QR & O) and also in the Canadian Forces Administrative Order 19-32, setting out a grievance procedure that works its way up the chain of command until it reaches the Chief of Defence staff, with a further Right of Appeal to the Minister of Defence. This is a mandatory procedure (section 19.26(2) of QR & O), with scheduled times within which officers at the various levels must give a decision ranging from 30 days to 6 months, but there is no time requirement within which the Minister of Defence must make a decision.
CONSIDERATION
[12] The 1998 Federal Court Rules, as with the predecessor Rules, do not specifically provide a procedure by which to strike out an application. However, the Court has, in the past, struck out originating notices of motion and, more recently, applications. The seminal case on all of this is the Court of Appeal's decision in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48. There the Court of Appeal reiterated that "... the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself." (page 52). The Court did, however, touch on the possibility of using Rule 5, the "gap" Rule and Rule 419, the Rule by which pleadings might be struck out. The current equivalent Rules are Rule 4 dealing with matters not provided for in the 1998 Rules and Rule 221, which is essentially the same as former Rule 419.
[13] Now, in David Bull the Court of Appeal observed that there was not necessarily a "gap" in the Federal Court Rules. One might observe, at this point, that the people who drafted the 1998 Federal Court Rules did not move to fill any perceived "gap", that is to draft a Rule which would clearly allow the Court to strike out an application. Yet, the Federal Court of Appeal did leave open another alternative when it observed that an originating notice of motion might be struck out, in an exceptional instance, where is was so clearly improper as to be without any possibility of success, pointing out that the Court does have an inherent jurisdiction. Now the Court of Appeal clearly does not mean that the Federal Court's jurisdiction goes beyond the substantive statutory grant of jurisdiction, but rather, that there is an implied or inherent procedural jurisdiction by which the Court may control its own process from abuse. Indeed, the Federal Court of Appeal, in New Brunswick Electric Power Commission v. Maritime Electric Co. Ltd. and National Energy Board, [1985] 2 F.C. 13 at 26, touches upon an implied jurisdiction presumably with the idea that, if Parliament has conferred a power on the Court there is the implication that there must also be the necessary procedure to control and to make the conferred jurisdiction effective. This concept also appear in Nisshin Kisen Kaisha Ltd. v. Canadian National Railway et al., [1981] 1 F.C. 293 at 301 that "... every Court of superior jurisdiction ... must possess the innate right of controlling its own process and, subject to the requirements of justice, to control the actions before it of those wishing to avail themselves of its jurisdiction.". In a similar vein, "... this Court has an inherent jurisdiction over its own process to enable it to carry out the basic raison d'être it shares with every court of civil jurisdiction: ...": Bandag Inc. v. Vulcan Equipment Co. Ltd. et al., [1977] 2 F.C. 397 at 402 (T.D.). Thus, even if one were to doubt the existence of a "gap" in the Federal Court Rules, it is still possible to strike out an application in an exceptional instance, the test being that the application must be so clearly improper as to be without any possibility of success:
| This is not to say that there is no jurisdiction in this court either inherent or through rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. (See e.g. Cynamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127, at 120 - 121 F.C. (T.D.)). Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion. |
| David Bull Laboratories (supra) |
| (pages 54 and 55) |
The test is thus a stringent one: an application ought not to be struck out unless it cannot possibly succeed and indeed, in that instance, it would be an irresponsible waste of time and resources to allow a futile judicial review proceeding, one which will not lead to any practical result, to proceed beyond a motion to strike out.
ADEQUACY OF REMEDY
[14] The central issue is whether Captain Loiselle has an adequate alternative remedy, in the first instance, to resolve his grievance within the structured military grievance procedure. To make the determination the Courts have looked at various factors including the procedure, who makes the decision, the powers of the decision maker and the manner in which they might likely be exercised, the burden of previous findings, expeditiousness and cost: see for example Harelkin v. University of Regina, [1979] 2 S.C.R. 561 at 588. By way of example and application the Federal Court of Appeal, in Anderson v. Canada (supra) considered the grievance of Petty Officer Anderson, who took his grievance the first step, grieving to the Commander, Maritime Forces Specific, who did not support the application. Petty Officer Anderson then commenced Federal Court judicial review proceedings. The trial judge denied the respondent's motion to strike out the originating notice of motion. The respondent appealed. The Court of Appeal, referring to Harelkin (supra), noted that:
| Judicial review will not be granted if there is an adequate alternative remedy that has not been exhausted. |
| Anderson (supra) |
| (page 57) |
In the result the Court of Appeal held that the military grievance procedure, in fact, afforded an adequate alternative remedy and that the application for judicial review should be struck out (page 62).
[15] In the present instance, Captain Loiselle has not taken the prescribed military grievance route of a series of forums leading up the chain of command to the Chief of Defence staff and then to the Minister of Defence, who's decision might then, in the proper case, come to this Court for judicial review. Rather, Captain Loiselle seeks review of the decision of the Director of Military Careers, National Defence Headquarters, Ottawa. And here I would note not only the memorandum of 24 July 1997, which I set out in full earlier, to the effect that the Director of Military Careers is the only person able to make exceptions to the restricted release policy, but also the 25 November 1997 letter written by Lieutenant General Kinsman, on behalf of the Minister of National Defence, which in effect is a refusal, complete with reasons, of an early release. On this basis, the military grievance procedure could well be looked upon as meaningless, for even if Captain Loiselle worked his way up the grievance procedure he would come not only to the Director of Military Careers, the only person able to approve exceptions to the restricted release policy and then to the Minister of National Defence, who has already responded, albeit through a delegate.
[16] This is the sort of situation which resulted in Mr. Justice MacKay's decision in Gayler (supra). Indeed, the Gayler decision was one which the Court of Appeal in Anderson had to consider and to either overrule or distinguish.
[17] Clearly, Gayler is distinguishable from Anderson. Acting Corporal Gayler sought review of a decision made under the Authority of the Chief of Defence Staff but communicated by the Director of Personnel, Careers Administration, Other Ranks, for action taken on account of her being implicated by association, ie. being present when someone else smoked marijuana. In Acting Corporal Gayler's case none of the officers forming the chain of command could overturn a decision that had in fact been made by the Chief of Defence Staff. Apparently on the premise that the military grievance procedure would be without meaning, until the applicant worked her way up to the Chief of Defence Staff, who might overrule himself, Mr. Justice MacKay decided that the applicant did not have an adequate alternative remedy, given the test in Harelkin (supra).
[18] Bringing this into the present context, Captain Loiselle's situation is clearly parallel to that of Acting Corporal Gayler. Captain Loiselle has, as I say, a decision from the Director of Military Careers in Ottawa. He also has, for all intents and purposes, a decision, albeit an informal one, made by the Minister of National Defence and communicated to him by a Lieutenant General Kinsman, Assistant Deputy Minister for Personnel and for the Department of National Defence. To force Captain Loiselle to go through the military grievance procedure would be an expensive, time consuming and meaningless exercise.
[19] All of this is not to say that Captain Loiselle will succeed. Rather, his case is not one that is clearly improper and without any possibility of success. The motion is therefore dismissed.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
November 16, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATE: August 10, 1998
COURT NO.: T-1320-98
STYLE OF CAUSE: Jean Martin Loiselle
v.
Attorney General of Canada
REASONS FOR ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
dated November 16, 1998
APPEARANCES BY:
Mr. M. R. Hunt for the Applicant
| Mr. Curtis Workun for the Respondent |
SOLICITORS OF RECORD:
| M. R. HUNT & ASSOCIATES for the Applicant |
| Victoria, BC |
| Morris Rosenberg for the Respondent |
Deputy Attorney General
of Canada