Date: 19990326
Docket: T-2509-90
BETWEEN:
DIXIE LEE MCLEAN,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER
LUTFY J.
[1] By way of motion for summary judgment, the defendant seeks the dismissal of the plaintiff's action for wrongful dismissal. The plaintiff commenced her action subsequent to her physical disability discharge from the Royal Canadian Mounted Police. The defendant raises three grounds for the summary dismissal of the action:
| (a) no proceedings lie against the Crown where a pension or compensation has been paid concerning the injury, damage or loss in respect of which the claim is made, pursuant to section 9 of the Crown Liability and Proceedings Act1; |
| (b) no proceedings lie against the Crown, pursuant to section 111 of the Pension Act,2 concerning any injury resulting in disability where a pension is awarded under that Act or any other Act in respect of the disability; and |
| (c) in the alternative, the grievance procedure concerning the plaintiff's administrative discharge, provided for in the Royal Canadian Mounted Police Act,3 precludes an action for wrongful dismissal against the Crown and limits her remedy to an application for judicial review under the Federal Court Act.4 |
Factual background
[2] On April 20, 1990, the plaintiff was advised by the Deputy Commissioner and commanding officer of "E" Division of the R.C.M.P. that she was being administratively discharged on account of her alleged physical disability, pursuant to paragraph 19(a) of the Royal Canadian Mounted Police Regulations, (1988).5 In the same letter, the plaintiff was advised that she could grieve this decision under the provisions of the Royal Canadian Mounted Police Act within thirty days of her receipt of the correspondence. Otherwise, her discharge would be effective June 2, 1990.
[3] By memorandum of April 30, 1990, the plaintiff advised of her intention to grieve the decision concerning her administrative discharge and sought supplementary information to assist her in pursuing the grievance. On August 1, 1990, some three months later, the plaintiff was served with the responses to the information she had sought and with a notice that she would have twenty-four days from the date of its service to present her grievance. On August 29, 1990, some four days beyond the period stipulated in the notice of August 1, 1990, the plaintiff filed her grievance presentation which she had apparently signed on June 15, 1990.
[4] During August 1990, there were several communications among the plaintiff and other R.C.M.P. officials concerning the possibility of a further hearing with respect to her medical condition, the availability of legal counsel and her request for a further extension to September 4, 1990 for the filing of her grievance. During these discussions, she was advised orally that her grievance must be filed by August 25, 1990.
[5] On August 29, 1990, the commanding officer of "E" Division noted that the plaintiff had not filed her formal grievance submission and, accordingly, directed that she be discharged as of September 21, 1990. On September 7, 1990, the plaintiff presented a grievance challenging the refusal to grant her an extension of time beyond August 25, 1990. On September 18, 1990, the plaintiff received the memorandum refusing her grievance of September 7, 1990. In her statement of claim, she alleges that her grievance concerning the extension was rejected "on the basis [that] it was without substance".
[6] On September 28, 1990, the plaintiff's statement of claim alleging wrongful dismissal was filed.
[7] At the time of her discharge, the plaintiff received a net severance payment of $9,094 and has since been receiving a monthly annuity of approximately $989, its value in December 1992, pursuant to paragraph 11(2)(b) of the Royal Canadian Mounted Police Superannuation Act.6
Does the Crown Liability and Proceedings Act preclude the plaintiff's action in wrongful dismissal?
[8] Part I of the Crown Liability and Proceedings Act is entitled Liability (Responsabilité civile). The Crown's liability in tort is set out under the first subheading Tort and Civil Salvage (Délits civils et sauvetages civils). Section 9, under the second subheading Special Provisions respecting Liability (Dispositions spéciales concernant la responsabilité), states:
| 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. |
9. Ni l'État ni ses préposés ne sont susceptibles de poursuites pour toute perte " notamment décès, blessures ou dommages " ouvrant droit au paiement d'une pension ou indemnité sur le Trésor ou sur des fonds gérés par un organisme mandataire de l'État. |
[9] The plaintiff acknowledges that her action for wrongful dismissal is in contract. Neither party questions that the Crown is liable in contract under common law. The issue is whether the statutory bar in section 9 extends to actions in contract.
[10] Section 9 purports to preclude "proceedings ... in respect of the claim" and, in French, "poursuites pour toute perte" where the claimant has received a pension or compensation in respect of the same injury. The broad scope of these words, however, appears to be limited by the context in which the provision is found. In 1953, the Crown Liability Act7 introduced comprehensive provisions removing the federal Crown's immunity from actions in tort. The headings in the 1953 legislation and the wording of the original version of section 9 have not changed. It has been suggested that Part I of the Crown Liability and Proceedings Act deals only with claims in tort.8 Upon review of Part I, it is difficult to envisage a matter relating to contracts being encompassed in the wording of any of its sections. Counsel for the defendant acknowledges that in each of the decisions he relied upon where section 9 was successfully invoked to bar a proceeding, the claim was in tort. Neither party identified any case law where section 9 precluded an action in contract.
[11] Even if the annuity and severance payments received by the plaintiff constitute "pension or compensation"9 within the meaning of section 9, I have serious doubts as to whether this provision is sufficiently free of ambiguity so as to preclude the plaintiff's action in contract. I am not prepared to consider favourably the dismissal of the plaintiff"s claim in contract on the basis of section 9.
Does the Pension Act preclude the plaintiff"s action in wrongful dismissal?
[12] The plaintiff further submits that the plaintiff"s action is barred by section 111 of the Pension Act :
No action or other proceeding lies against Her Majesty or against any officer, servant or agent of Her Majesty in respect of any injury or disease or aggravation thereof resulting in disability or death in any case where a pension is or may be awarded under this Act or any other Act in respect of the disability or death.
Nulle action ou autre procédure n'est recevable contre Sa Majesté ni contre un fonctionnaire, préposé ou mandataire de Sa Majesté relativement à une blessure ou une maladie ou à son aggravation ayant entraîné une invalidité ou le décès dans tous cas où une pension est ou peut être accordée en vertu de la présente loi ou de toute autre loi, relativement à cette invalidité ou à ce décès.
More particularly, the defendant argues that the plaintiff is in receipt of a pension awarded under "any other Act" within the meaning of section 111 and may not bring this action against the Crown.
[13] Subsection 3(1) of the Pension Act defines "pension":
"pension" means a pension payable under this Act on account of the death or disability of a member of the forces, including a final payment referred to in Schedule I;
"pension" Pension payable en vertu de la présente loi en raison du décès ou de l'invalidité d'un membre des forces, y compris un paiement définitif visé à l'annexe I.
There is also a definition of "member of the forces":
"member of the force" means a person who has served in the Canadian Forces or in the naval, army or air forces of Canada or Newfoundland since the commencement of World War I;
"membre des forces" Personne qui a servi dans les Forces canadiennes ou dans les forces navales, les forces de l'armée ou les forces aériennes du Canada ou de Terre-Neuve depuis le commencement de la Première Guerre mondiale.
The long title of this legislation is "An Act to provide pensions and other benefits to or in respect of members of the Canadian naval, army and air forces and of the Canadian Forces". The definitions of "pension" and "member of the forces" do not include a member of the Royal Canadian Mounted Police. Absent a provision which, either specifically or by incorporation of another provision in other legislation, refers to a member of the Royal Canadian Mounted Police, section 111 of the Pension Act does not extend to R.C.M.P. members.
[14] Section 111 might affect a member of the R.C.M.P., if such member received a pension under the Pension Act "or any other Act". Under part II of the Royal Canadian Mounted Police Superannuation Act, section 32 provides for the payment of an award in accordance with the Pension Act where the member"s injury "arose out of, or was directly connected with, his service in the Force". The plaintiff has not asserted any entitlement to a pension under subsection 32(1). The defendant acknowledges that the plaintiff"s annuity is paid pursuant to paragraph 11(2)(b ) of the Royal Canadian Mounted Police Superannuation Act.10 There is no linkage between the annuity paid to the plaintiff pursuant to paragraph 11(2)(b) and a pension under the Pension Act. Neither the definition of "pension" or "member of the forces" in the Pension Act nor the terms of paragraph 11(2)(b) brings the plaintiff and her action within the statutory bar of section 111.11 The defendant"s motion for summary judgment cannot succeed on this ground.
Does the grievance procedure in the Royal Canadian Mounted Police Act preclude the plaintiff"s action in wrongful dismissal?
[15] The Commissioner of the Royal Canadian Mounted Police appoints members of the Force, other than officers, pursuant to paragraph 7(1)(a) of the Royal Canadian Mounted Police Act. There is no other provision in the legislation concerning the term of the appointment of a member. Public officers appointed under the authority of an enactment are deemed to have been appointed to hold office during pleasure only.12 At common law, servants of the Crown held office at pleasure and could be terminated without notice.13 However, the right to dismiss, without notice, government employees serving at pleasure can be limited through legislation or a collective agreement. Parliament has limited the power to dismiss members of the Royal Canadian Mounted Police, otherwise serving at pleasure, through the enactment of subsection 12(2) of the Act:
No member other than an officer may be dismissed or discharged from the Force except as provided in this Act, the regulations or the Commissioner's standing orders.
Le membre qui n'est pas officier ne peut être congédié ni renvoyé de la Gendarmerie si ce n'est dans les conditions prévues par la présente loi, ses règlements ou les consignes du commissaire.
[16] The member"s grievance with respect to an administrative discharge on the ground of physical disability is first referred to level I in the grievance process, which is constituted by an assistant-commissioner designated by the Commissioner.14 The final level in the grievance process is level II, which is constituted by the Commissioner.15 Prior to engaging the level II consideration, however, the Commissioner refers the grievance to the Royal Canadian Mounted Police External Review Committee.16 Sections 33 through 35 of the Royal Canadian Mounted Police Act set out the procedures to be followed by the Committee, including the delivery of its report to the Commissioner concerning the disposition of the grievance by the Force. The Commissioner shall include in the final or level II decision reasons for not following the Committee recommendations, if such is the case.17 Finally, subsection 32(1) of the Act is a privative clause which, in its version in force when this proceeding arose in 1990, stated that: "... the Commissioner"s decision in respect of any grievance is final and binding and is not subject to appeal to or review by any court except in accordance with section 28 of the Federal Court Act ."18
[17] In Gingras v. Canada,19 the Court of Appeal considered whether a member of the Royal Canadian Mounted Police was eligible for the bilingualism bonus plan introduced for employees in the federal public service. Justice Décary, in considering the issues relevant to that case, made the following comments concerning the status of a member of the Royal Canadian Mounted Police:
| As an RCMP member is appointed by the Commissioner rather than by the Public Service Commission he is not an employee within the meaning of the Public Service Employment Act, but Parliament, by virtue of the very fact that he is an employee of the public service, has made special provision for him to participate in Commission competitions, leave the RCMP without penalty and become an employee of the Public Service within the meaning of that Act; ... |
...
| Though it is possible that certain distinctions have become obsolete over the years the fact remains that it is understandable for Parliament, in view of the special and ambiguous status of members of the RCMP in the ordinary law, to take care from time to time and for special purposes, which generally go beyond the scope of the internal operation of the Government, to specify that RCMP members are or are not "servants" or "employees" of the Crown.20 |
[18] In this plaintiff"s action for wrongful dismissal, there is no evidence to suggest any special conditions of employment which would render the grievance process set out in the legislation, regulations and standing orders inapplicable to her situation. Nor is there any evidence that she is subject to a collective agreement. Her service was during pleasure only but her discharge from the Force was subject to the provisions of the Royal Canadian Mounted Police Act , its regulations and the Commissioner"s standing orders, supra paragraph 14.
[19] Several decisions have limited the remedies of public servants, who are dismissed while serving at pleasure, to those found in legislative or regulatory schemes or in collective agreements. The public servant, in such circumstances, could not sue for wrongful dismissal. In McNaughton v. Nova Scotia (Attorney General),21 where a non-unionized civil servant was not covered by the terms of any collective agreement, the Nova Scotia Court of Appeal found that the terms of employment were to be found in the governing legislation and its regulations:
| The civil servant not subject to a collective agreement or other express contractual arrangement must look to the Act and the regulations for the terms of his or her employment. These provisions constitute a comprehensive scheme outlining the basis of such employment. It is legislation validly enacted by the province acting within its constitutional powers and governs in all respects the employment of such civil servants by the Crown. There is no basis on which it can be said that there is as well an implied contract of employment between them. |
[20] In two other decisions, this Court held that members of the Royal Canadian Mounted Police could not maintain a cause of action for wrongful dismissal.22 In both these cases, however, the statutory provision concerning the discharge of members of the R.C.M.P. was substantially different than the current version of subsection 12(2), supra paragraph 15. In its earlier version, which was repealed in 1986,23 the provision stated:
Unless appointed for temporary duty, every member other than an officer shall upon appointment sign articles of engagement for a term of service not exceeding five years, but any such member may be dismissed or discharged by the Commissioner at any time before the expiration of his term of engagement.
Sauf s"il est nommé pour une fonction temporaire, chaque membre autre qu"un officier doit, lors de sa nomination, signer un acte d"engagement pour une période n"excédant pas cinq ans, mais un tel membre peut être congédié ou renvoyé par le Commissaire en tout temps avant l"expiration de la durée de son engagement.
[21] In Evans v. Canada,24 Justice Strayer concluded that employment in the public service, at the pleasure of the Crown, precludes a cause of action in contract. In his words:
| ... it was conceded by the plaintiff at the time of the hearing that there was no cause of action in contract here. This conclusion is based on the well-established principle that at common law employment in the Public Service is at the pleasure of the Crown, and that while this has been modified in many ways by statute the remedies which a public servant can pursue against his employer regarding the terms of his employment are those provided by statute. |
A similar outcome is found in Shiloff v. Canada25 where Justice Rothstein relied on Evans in concluding that a public servant had no redress by way of an action for damages in the Federal Court, even though the government institution had failed to assess fairly her performance as a post-doctoral fellow. In the words of Justice Rothstein:
| ... the plaintiff feels aggrieved by an occurrence or matter relating to the terms and conditions of employment, namely the unfairness respecting her performance assessment resulting in a not "fully satisfactory" assessment, thereby depriving her of a DS position. That section 91 of the [Public Service Staff Relations Act ] is the appropriate redress for the plaintiff, as opposed to an action for damages for breach of contract, is the necessary implication arising from the fact that, at common law, and now as codified by section 24 of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended, ... the term of employees of the government is during the pleasure of Her Majesty. |
[22] In summary, an action in wrongful dismissal applies where the employer fails to provide reasonable notice of the termination. This principle does not extend to a member of the Royal Canadian Mounted Police who is appointed to serve during pleasure. No special conditions of employment have been alleged or established in this proceeding. The statutory and regulatory regime concerning the grievance of a member who has been administratively discharged on account of a physical disability is the plaintiff"s sole remedy. Subsection 12(2) of the Act requires that the plaintiff could not be administratively discharged from the Force except as provided in the legislation, the regulations or the Commissioner"s standing orders. There is no provision that requires the Commissioner to provide the member with reasonable notice. In this case, the appropriate remedy for the plaintiff was to pursue the Force"s refusal of her request for an extension of the time period for the filing of her grievance presentation either to level II of the grievance process or, if she considered it appropriate, to seek judicial review immediately. This is consistent with the privative clause in subsection 32(2) of the Act. The plaintiff"s action for wrongful dismissal is precluded by the grievance procedure, provided for in the Royal Canadian Mountain Police Act , concerning her administrative discharge for reasons of physical disability.
Disposition of the defendant"s motion for summary judgment
[23] In normal circumstances, as I have agreed with the third ground of the defendant"s motion for summary judgment, this action would be dismissed. In asserting that the plaintiff"s action is precluded by the statutory and regulatory scheme in place for grievance procedures concerning administrative discharges, counsel for the defendant acknowledged in written submissions that the plaintiff"s remedy "... lies in an application for judicial review to the Federal Court of Appeal pursuant to section 28 of the Federal Court Act". Reference was made to section 28 because this proceeding commenced in 1990. In the end, the Court is being asked to dismiss the plaintiff"s action because her appropriate remedy in 1990 ought to have been an application for judicial review.
[24] Rule 57 of the Federal Court Rules, 1998 states:
An originating document shall not be set aside only on the ground that a different originating document should have been used.
La Cour n"annule pas un acte introductif d"instance au seul motif que l"instance aurait dû être introduite par un autre acte introductif d"instance.
There was no similar provision in the former Rules. Under the transitional provisions, the new Rules apply equally to proceedings commenced under the old Rules.
[25] On September 18, 1990, the plaintiff learned of the dismissal of her grievance of the decision refusing to extend the time for the presentation of her substantive complaint. Ten days later, the plaintiff"s action was launched seeking: (a) an order for specific performance requiring the defendant to employ the plaintiff as a constable in the R.C.M.P.; (b) in the alternative, general damages for wrongful or constructive dismissal; and (c) other damages.
[26] It is unusual in actions for wrongful dismissal to seek reinstatement by way of specific performance. This plaintiff, however, had requested an extension of time to file her principal grievance. In so doing, she was in effect challenging the intended administrative discharge and seeking to continue her employment as a constable in the R.C.M.P. In this sense, the claim for reinstatement in her action is of the same kind that would have been in issue if her grievance had been allowed to proceed.
[27] After having considered the supplementary written submissions from each party, I have concluded that effect must be given to Rule 57, even though the action was commenced more than eight years ago. The defendant did not succeed in having this action barred by the operation of either section 9 of the Crown Liability and Proceedings Act or section 111 of the Pension Act. The defendant is correct, in my view, on the third ground of the motion for summary judgment, in asserting that the plaintiff"s appropriate remedy was by way of an application for judicial review. In so concluding, of course, I pass no judgment on the merits of the plaintiff"s remedy, should she choose to pursue it. The lapse of some eight years since the commencement of the action is a delay for which neither party is without fault and the time factor, in these circumstances, should not prevent the application of Rule 57.
[28] The plaintiff"s action was commenced within the ten-day time period, stipulated in the 1990 version of section 28 of the Federal Court Act , for filing the application for judicial review. Accordingly, no extension of time would be required if the plaintiff chose to convert this action into an application for judicial review.
[29] In 1990, judicial review of decisions of a federal board, commission or other tribunal on the grounds of a failure to observe a principle of natural justice, an error of law or an erroneous finding of fact was within the jurisdiction of the Court of Appeal. Since 1992, the decision of an officer of the Royal Canadian Mounted Police not to extend the time period for the filing of the plaintiff"s substantive grievance is one which would be subject to judicial review by the Trial Division.
[30] Accordingly, the plaintiff will be granted a thirty-day time period to file an originating notice of motion in accordance with Rule 300(a) of the Federal Court Rules, 1998. In the exceptional circumstances of this case, the order shall provide for the filing of the notice of application in the Trial Division, without prejudice to the rights of the parties, should either deem it appropriate, to seek an order transferring the plaintiff"s new proceeding to the Court of Appeal, pursuant to Rule 49.26
[31] If the plaintiff chooses not to pursue her remedy by way of application for judicial review within the thirty-day time period, the defendant"s motion for summary judgment will be granted and this action will be dismissed.
[32] There will be no order as to costs.
J.F.C.C.
Ottawa, Ontario
March 26, 1999
__________________8 D. Sgayias, Q.C. et al , The Annotated Crown Liability and Proceedings Act 1995 (Toronto: Carswell, 1994) at 1.
9 The plaintiff continues to receive an annuity pursuant to paragraph 11(2)(b ) of the Royal Canadian Mounted Police Superannuation Act, supra note 6, which states:
| 2) A contributor who is compulsorily retired from the Force by reason of having become disabled is entitled to a benefit determined as follows:...(b) if he has to his credit ten or more years of pensionable service, he is entitled to an immediate annuity. | (2) Un contributeur qui est obligatoirement retraité de la Gendarmerie du fait qu'il est devenu invalide a droit à une prestation déterminée comme suit :...b) s'il compte à son crédit dix ans ou plus de service ouvrant droit à pension, il a droit à une annuité immédiate. |
11 In subsection 3(1) of the Royal Canadian Mounted Police Superannuation Act, supra note 6, "regularforce" is defined as the regular force of the Canadian Forces. This definition does not appear to be relevant to any of the circumstances of this proceeding. An award or pension made pursuant to section 32 of this Act is to be "dealt with and adjudicated on in like manner as claims under the Pension Act" even though an R.C.M.P. member does not come within the definition of "pension" in the Pension Act, supra paragraph 13. Again, this precise legal issue is not relevant to this case because the plaintiff is not receiving payments under section 32.
12 Interpretation Act, R.S.C. 1985, c. I-21, subsection 23(1).
13 Flieger v. New Brunswick, [1993] 2 S.C.R. 651 at 669.
14 Subsections 31(1) and (2) of the Royal Canadian Mounted Police Act, supra note 3; paragraph 3(b) of The Commissioner"s Standing Orders (Grievances), 1990, SOR/90-117; and paragraph 19(a) of the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361.
15 Subsection 32(1) of the Royal Canadian Mounted Police Act, supra note 3, and section 2 of The Commissioner"s Standing Orders (Grievances), 1990, supra note 14.
16 Subsection 33(1) of the Royal Canadian Mounted Police Act, supra note 3.
17 Subsection 32(2) of the Royal Canadian Mounted Police Act, supra note 3.
18 The current version of subsection 32(1) is substantially similar to its predecessor but reflects the 1992 amendments to the Federal Court Act, supra note 4, and deletes the reference to section 28 of that Act.
21 (1993), 103 D.L.R. (4th) 227 (N.S.C.A.) at 233.
22 Kedward v. The Queen, [1976] 1 F.C. 57 (C.A.), aff"g [1973] F.C. 1142 (T.D.); and Clark v. HerMajesty The Queen in Right of Canada, [1994] 3 F.C. 323 (T.D.) at 343-4, where Justice Dubé relied on the Court of Appeal decision in Gingras, supra note 19.
26 The de bene esse order I propose to sign is not inconsistent with the spirit of paragraph 44(c) of the Interpretation Act, supra note 12, although no proceeding was in fact taken under the 1990 version of section 28 of the Federal Court Act, supra note 4.