Date: 19980408
Docket: T-228-98
BETWEEN:
LAURA-LEE BROWN,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
MR. JOHN. A. HARGRAVE,
PROTHONOTARY
[1] The Originating Notice of Motion filed by Lieutenant Brown, an Air Navigator and a graduate of the Royal Military College, Kingston, seeks a review of a decision made by the Director of Military Careers, Colonel G. W. Nordick, that she complete what the Canadian Forces understands to be obligatory service, running until November 1999. Rather than be subject to this restricted release policy Lieutenant Brown wishes to leave her military career immediately to take up a position with the World Association of Girl Guides and Girl Scouts, in Switzerland.
[2] The present Motion by the Crown is to strike out Lieutenant Brown's proceeding on the basis that Lieutenant Brown must first exhaust the military grievance procedure and remedies before she may turn to the Federal Court for judicial review.
GRIEVANCE PROCEDURE
[3] Before turning to the relevant facts it is appropriate to set out the military grievance procedure which the Crown says ought to be employed. The procedure is mandated by Section 29 of the National Defence Act which, omitting some exceptions, provides:
| "... an officer or non-commissioned member who considers that he has suffered any personal oppression, injustice or other ill-treatment or that he has any other cause for grievance may as a matter of right seek redress from such superior authorities in such manner and under such conditions as shall be prescribed in regulation made by the Governor in Council.". |
[4] The regulations referred to are the Queen's Regulations and Orders ("QR & O") particularly Article 19.26, which in paragraph 1 defines a redress authority as consisting of "... a Commanding Officer, an officer commanding a formation or command, the Chief of Defence Staff or the Minister.". Paragraph 19.26(2) requires a complaint be submitted through the chain of command. By paragraph 19.26(3) a redress authority must act as expeditiously as possible.
[5] In each instance, if the complainant feels her or his grievance has not been properly resolved, the grieving member of the military may seek redress at the next stage of the chain of command. Paragraphs 19.26(10), (11) and (12) set out further procedure and time limits:
| "(10) Every redress authority who receives a complaint in writing shall: |
| (a) where it is within that authority's power to afford redress, |
| (i) take the necessary action, if the redress authority is personally satisfied of the justice of the complaint, or |
| (ii) return the complaint to the member and inform the member that the complaint has not been redressed because the redress authority is not personally satisfied of the justice of the complaint; and |
| (b) where it is not within that authority's power to afford redress, |
| (i) forward the complaint to the next higher redress authority in the chain of command, if the authority is personally satisfied of the justice of the complaint, or |
| (ii) return the complaint to the member and inform the member that the complaint has not been redressed because the redress authority does not have the power to afford redress and that the authority is not personally satisfied of the justice of the complaint. |
| (11) A redress authority shall complete the action required under paragraph (10), |
| (a) where the redress authority is a commanding officer, within 30 days of receipt of the complaint by that authority; |
| (b) where the redress authority is an officer commanding a formation, within 90 days of receipt of the complaint by that authority; and |
| (c) where the redress authority is an officer commanding a command, within six months of the receipt of the complaint by that authority. |
| (12) Where a redress authority referred to in paragraph (11) does not make a decision in respect of a complaint of an officer or non-commissioned member within the period required under that paragraph, the member may submit the complaint in writing directly to the next higher redress authority in the chain of command.". |
Article 19.26(13) incorporates a one year limitation on a complaint with a proviso in paragraph (15) that a Commanding Officer may, taking into account the circumstances, deal with a complaint after the limitation has run if it is in the interests of justice to do so.
[6] Article 19.27 of the QR & O sets out the procedure for submitting a grievance, that it shall be in writing and contain:
| "(a) a statement of facts of the situation giving rise to the complaint; |
| (b) a statement of the redress sought; |
| (c) a written statement from any individual upon whom the member is relying to substantiate the complaint; and |
| (d) a copy of any document upon which the member is relying to substantiate the complaint.". |
[7] The combined effect of Articles 19.26 and 19.27 of the QR & O is to present a well-defined and straightforward procedure with, at least at the initial levels of the chain of command, strict and reasonable time limits within which the grievance structure must respond.
[8] Several sections of the Canadian Forces Administrative Orders are relevant, however I will deal with them in their appropriate contexts.
BACKGROUND
[9] Lieutenant Brown, who was initially assigned the military occupation of communications and electronics engineer, enrolled 4 July 1989 in the Regular Officer Training Plan ("R.O.T.P."), graduating with a bachelor's degree in chemical engineering in May of 1994. She understood that in return for the opportunity of a university education she would then be required to serve in the Canadian Forces for a further 5 years, that is until May 1999, but that she would be eligible to seek earlier voluntary release under the Canadian Forces Administrative Orders ("CFAO") 15-7, paragraph 5, which provides that:
| "a member serving under a period of obligatory service who requests voluntary release prior to the expiration of that period will not have that request approved unless special and unforeseen circumstances existed and the exigencies of the service permit.". |
To come within this provision Lieutenant Brown must show, by way of special and unforeseen circumstances, "circumstances which are compelling in nature and unique or particular to that member" (CFAO 15-7, Section 2) and make payment to reimburse the military for her subsidized university education.
[10] Lieutenant Brown and the Canadian Forces differ as to the required length of her military service. The Canadian Forces takes the position that because Lieutenant Brown transferred to the military occupation of air navigator, qualifying in November of 1995, she must complete a further four years of obligatory service running until November of 1999. Lieutenant Brown believes this to be discriminatory for she understands other members of the Canadian Forces, who were in similar circumstances, have been granted the voluntary release that she now seeks.
[11] This brings us to Lieutenant Brown's request for voluntary release, submitted in February of 1997. She was promptly advised, in writing on 27 February 1997, that her obligatory service period did not expire until 16 November 1999 and was denied a release. Some four months later, 7 July 1997, Lieutenant Brown submitted a second request for voluntary release. This resulted in a consideration by the Career Review Board (the "Board"), which issued a decision 12 December 1997, received by Lieutenant Brown 14 January 1998. The Board confirmed the 16 November 1999 release date.
[12] In the meantime Lieutenant Brown engaged a lawyer who wrote, 24 September 1997, to Colonel G. W. Nordick, Director of Military Careers, Ottawa. Colonel Nordick is the person who makes decisions as to voluntary releases. His response, 30 September 1997, was that he would consider the request once the Board had made a determination.
[13] The Board's determination was reviewed by Colonel Nordick who wrote Lieutenant Brown in December of 1997 denying voluntary release and thus Lieutenant Brown seeks judicial review of the decision of Colonel Nordick.
[14] Lieutenant Brown points out that the Canadian Forces has had some difficulty with its voluntary release program, referring to an October 1997 memorandum dealing with poor communication and understanding of the policy. She herself apparently had misconceptions about the policy. She also did not realize, nor was she advised, as required by paragraph 12 of the Canadian Forces Administrative Orders ("CFAO") 15-7, that by applying for and accepting further training, as a navigator, she was incurring further service obligations.
[15] Turning to an aspect more relevant to the present motion, Lieutenant Brown submits that to use the normal military review procedure would be time consuming, particulary in that she would have to work her way up the review chain beginning with her Commanding Officer. Given the time limits in the system it could take in excess of 10 months for the grievance to reach the Defence Chief of Staff in Ottawa. Moreover, since Colonel Nordick, who has in effect made the decision, is attached to the National Defence Headquarters in Ottawa, counsel for Lieutenant Brown submits that any real review of the decision would have to be made by the Defence Chief of Staff. The Defence Chief of Staff is under no time constraints within which he must make a decision. If Lieutenant Brown had to take the next step, review by the Minister of National Defence, it could take a great deal of time to exhaust the remedies provided by the Canadian Forces review. Lieutenant Brown is of the view that judicial review by the Federal Court would be a more expedient and appropriate remedy. Conversely, the Crown believes the review system provided within the Canadian Forces is in fact an adequate remedy and, arguably, a better remedy in that it can be relatively speedy and is clearly less expensive.
CONSIDERATION
[16] While Lieutenant Brown does raise a Charter argument and questions whether there is any point in carrying on with the military review procedure because the military has, in her view, wrongly decided the legal issue of additional obligatory service, her main reason for proceeding in the Federal Court is her belief that judicial review would be a quicker remedy. While one cannot compare time frames for the grievance system and for judicial review in absolute terms, it is likely that a judicial review remedy would take less time. In a judicial review proceeding it is conceivable that an applicant might have a decision within half a dozen months, more or less, depending upon whether the parties required full time limits for various steps and the availability of a hearing date. Were Lieutenant Brown to proceed with her military remedy, bearing in mind however that Section 19.26(3) of the QR & O requires grievances to be "... investigated as expeditiously as possible", the procedure might, if each step is accomplished within a reasonable time, take a year, more or less.
Striking Out An Application:
[17] The time difference within which remedies might be obtained is only one of several factors in determining whether this proceeding ought to be struck out. But to begin, there is the issue of whether a respondent can strike out an application for judicial review brought by an originating notice of motion. This point was first considered by the Federal Court of Appeal in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (1994) 176 N.R. 48, although the Court did not decide whether an originating notice of motion might be struck out relying on rule 5, the gap rule and rule 419, the rule by which pleadings may be struck out. The Court of Appeal was of the view that there was not necessarily a gap in the Federal Court Rules, for "... 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." (p. 52). Mr. Justice Stayer, who delivered the reasons for the Court of Appeal, did go on to leave open the possibility of striking out an originating notice of motion, in an exceptional instance, where it was 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." (pp. 54 - 55). |
Subsequently, in Canadian Pasta Manufacturers' Association v. Aurora Importing & Distributing Ltd., an unreported 23 April 1997 decision in proceeding A-252-97, the Federal Court of Appeal struck out an application for judicial review when, in their opinion, it could not possibly succeed.
[18] To make it a usual step to bring interlocutory motions to strike out suspect judicial review proceedings would be wasteful of time and resources. Alternately, it would be an equally 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. It may well be for these reasons that the Court of Appeal, in David Bull Laboratories, did not foreclose the possibility of striking out a motion under rule 419, but did set a stringent test, that an originating notice of motion must be "... so clearly improper as to be bereft of any possibility of success.". I now turn to a consideration of whether the internal remedy available to Lieutenant Brown, the grievance procedure provided by the National Defence Act and CFAO 19.26 and 19.27 is adequate.
Adequacy of Remedy
[19] In the present instance Lieutenant Brown submits that she ought to be allowed to pursue a judicial review remedy primarily because it should bring a quicker resolution than that available by pursuing the military grievance procedure up the chain of command. However convenience and expedience are not necessarily the test, nor is it a case of whether one forum is better than another. I must ask myself whether a forum, or a series of forums, consisting of the chain of command leading eventually to the Chief of Defence Staff and then to the Minister of Defence, is an adequate forum, in the first instance, in which to resolve Lieutenant Brown's grievance case: see for example Canadian Pacific Ltd. v. Matsqui Indian Band (1995) 26 Admin. L.R. (2d) 1 at 29 (S.C.C.).
[20] I also recognize that the existence of an adequate alternate remedy does not automatically preclude judicial review, for it is at the discretion of the Court whether or not to hear such a case: Harelkin v. University of Regina (1979) 2 S.C.R. 561. In determining whether there is an adequate alternative remedy, or a remedy that is even better than that offered by the Court, the factors to consider include the procedure, who makes the decision, their powers and the manner in which they might likely be exercised, the burden of previous findings, expeditiousness and cost (Harelkin at p. 588).
[21] The factors referred to in Harelkin were among those considered by the Court of Appeal in Anderson v. Canada (1997) 141 D.L.R. (4th) 54. In that instance, Petty Officer Anderson, issued with a counselling and probation order, began redress proceedings to have any record of the affair removed from his file. The application for redress of grievance was dealt with by the Commander, Maritime Forces Pacific, who advised he did not support the application. Petty Officer Anderson then began a judicial review proceeding. At the trial level the Judge refused to strike out the originating notice of motion. Before the Court of Appeal the Crown argued, among several alternatives, that the proceeding ought to be struck out on the ground that there was an adequate alternative remedy available to Petty Officer Anderson, which he had chosen not to exhaust. The Court of Appeal referred to Harelkin (supra.) and stated that "Judicial review will not be granted if there is an adequate alternative remedy that has not been exhausted." (Anderson at p. 57). The Court then went on to consider factors bearing on the adequacy of the alternative remedy, beginning with a consideration of the hierarchy of the redress authority, set out in the Queen's Regulations and Orders ("QR & O") for the Canadian Armed Forces, article 19.26(1), being a "... commanding officer, an officer commanding a formation or command, the Chief of Defence Staff or the Minister.". Article 19.26(2) provides that a complaint or grievance shall be submitted through this chain of command. Article 19.26(3) requires complaints "... to be investigated as expeditiously as possible".
[22] The Trial Judge, in Anderson, viewed the military grievance procedure as inadequate by reason of the time that might be consumed in pursuing the complaint upward through the chain of command which would, in addition, be costly and stressful.
[23] In Anderson the Court of Appeal acknowledged that judicial review might well lead to a quicker result than were the complaint to work its way, step by step, up the chain of command, but each step and indeed the next step of the chain of command, had the jurisdiction to grant a remedy (albeit with no assurance as to a favourable outcome). The Court of Appeal went on to touch upon delay as a factor, but felt it was not such as to warrant the Court's intervention, nor were the cost or stress factors such to justify the Court's interference with the military grievance procedure, which it characterized as simple and straightforward. In result the Court held that the military grievance procedure afforded an adequate alternative remedy and that the application for judicial review should be struck out (ibid, p. 62).
[24] The Anderson case might seem to provide a complete answer to Lieutenant Brown's request for judicial review. However to reach a decision in Anderson the Court of Appeal felt it had to touch upon Gayler v. Director Personnel, Careers Administration, Other Ranks, National Defence Headquarters (1995) 88 F.T.R. 241, a decision of Mr. Justice MacKay of the Trial Division. In Gayler, which is distinguishable in the present instance, the applicant sought judicial review of an initial decision made by the Director Personnel, Careers Administration, Other Ranks, a decision made on behalf of the Chief of Defence Staff. In that the chain of command consisted of the Formation Commander, the Officer commanding the Command, the Chief of Defence Staff, the Minister of Defence and the Governor in Council, the military grievance procedure would be purposeless until the applicant worked her way up the chain of command to reach the Chief of Defence Staff, for only he had the authority to overturn a decision made on his behalf. Those officers at the lower levels in the grievance procedure only had the power to make recommendations to the Chief of Defence Staff. Apparently on the basis that the military grievance procedure would be meaningless until the applicant worked her way up to the Chief of Defence Staff, Mr. Justice MacKay decided the applicant was not precluded from immediately seeking judicial review. The decision under review was accordingly set aside by reason of breach of procedural fairness.
[25] The pertinent aspect of Gayler, in the present instance, is that delay, through a meaningless set of appeals up the chain of command, may be sufficient to induce the Court to exercise its discretion to hear an application notwithstanding the result would be to bypass the military grievance procedure under articles 19.26 and 19.27 of the QR & O.
[26] In the present instance Lieutenant Brown has a decision from the Director of Military Careers at the National Defence Headquarters in Ottawa. However, as distinct from the situation in Gayler, the decision of the Director of Military Careers in Lieutenant Brown's case is, on its face, his decision and not a decision made on behalf of the Chief of Defence Staff. In Gayler the Formation Commander and the Officer commanding the Command could, as I have said, only make recommendations. I do not take the Director of Military Careers to be a part of the chain of command. Thus Lieutenant Brown has an alternative remedy short of the Minister of Defence, for the Director of Military Careers, being outside of the chain of command and making his own decision, has not placed those in the chain of command, below the Chief of Defence Staff, in a position where they may make only recommendations. Since the whole of the chain of command is vested with a power of redress, it would not be futile for Lieutenant Brown to submit the complaint to her Commanding Officer. Certainly there is no assurance that the Commanding Officer would grant the relief sought, but neither is it absolute that there would be a refusal.
[27] It does concern me that it took many months for the military to move through a Board review, have the decision reviewed by the Director of Military Careers, misplace the result and then finally advise Lieutenant Brown of the outcome. However that does not mean that the actual grievance procedure, which is bounded by specific time restraints, would take so long to reach the Minister of Defence if Lieutenant Brown chose to or needed to go to that length. Certainly Lieutenant Brown submits that time is of the essence for she has a job offer which will not stay open indefinitely. She, however, has not pursued her remedies diligently and here I would note an hiatus between 27 February 1997, when she received the initial refusal from Lieutenant Colonel Cottingham, to her request for release from obligatory service and 7 July 1997 when she submitted a second memorandum seeking early release.
[28] As the Court of Appeal pointed out in Anderson (supra at p. 62) the procedure is simple and straightforward, a complaint being made merely on the basis of a written statement of facts, a statement of the redress sought, a written statement from any individual being relied upon to substantiate the complaint and copies of any documents. Even should Lieutenant Brown retain counsel to help with preparation of this material I question that it would be as expensive as judicial review. Costs, while an element which I must consider, is not a determinative element in this instance.
[29] Counsel for the Crown has referred me to a more recent unreported decision, that of Mr. Justice Nadon in Couture v. Attorney General of Canada, 10 October 1997, Action T-2530-96. The applicant, who had attended Royal Military College in Kingston and subsequently obtained a master's degree from Queens University, at the expense of the Canadian Armed Forces, wished an early release. He submitted applications, working his way up the normal chain of command, but did not make an application for redress to the Chief of Defence Staff. Mr. Justice Nadon considered the Anderson case (supra) in detail and the facts in the case at hand. He was unable to distinguish the facts in Anderson and was of the view that the process set out in the National Defence Act and in Articles in 19.26 and 19.27 of the QR & O afforded an adequate alternative remedy and that the Crown must succeed in its submission to have the application dismissed.
[30] As a further attack on the adequacy of the military grievance procedure counsel for Lieutenant Brown submits that a determination of policy through the grievance procedure, which as I understand the argument is within the jurisdiction of the grievance procedure, is something very different from determining a grievance through legal interpretations. In written argument in the Applicant's record, counsel refers to a passage at page 8 of a document "Regular Officer Training Plan (ROTP), A Resume of Pertinent Regulations and Terms of Service". It begins by setting out an obligatory period of service of five years, regardless of occupation, after graduation from a military college or from a university and then, at the conclusion of the passage adds the parenthetical comment that "an Air Navigator is obliged to serve a minimum of four years ... regardless of the period of subsidization.". Counsel points out that this passage clearly sets out that the initial obligation, after graduation from a military college, is five years "regardless of occupation". He goes on to submit that if it had been intended that the four year minimum service required of an air navigator not be encompassed within the five year obligatory service arising from a subsidized education, that should have been made clear. Counsel says what should have been made clear but which was not is that on the military's interpretation, the obligatory service arising out of the air navigation course began to run only on graduation as an air navigator.
[31] Neither counsel touched upon paragraph 11 of CFAO 15-7, which would seem to require the obligatory service of five years and of four years to run not concurrently but consecutively, after completion of education and training. All of this, including the ROTP terms of service and CFAO 15-7, may well result in the grievance procedure having to grapple with legal questions. In Gallant v. The Queen (1979) 91 D.L.R. (3d.) 695, a decision of Mr. Justice Marceau (as he then was). In Gallant at issue was a decision of a commanding officer, based on CFAO 19-20, which was submitted to be arbitrary, illegal and unjust. Mr. Justice Marceau notes that military life is precisely regulated and that while the fate of members is not left to the whims of superiors, members have relief only by the internal appeal process and the courts have no power to supervise or control:
| "The National Defence Act, R.S.C. 1970, c. N-4, carefully defines the status, fundamental rights and prerogatives of members of the Armed Forces. The Act is supported by Regulations which govern relations among members of the military themselves, with respect to the internal organizational policies and the authority structures. Administrative directives such as that in the case at bar are designed to order and regularize in a more detailed and concrete manner the application of the provisions of the Act and Regulations. Military life, especially the exercise of authority within the army, is precisely regulated. A decision such as that disputed by the plaintiff in the case at bar is certainly not left to the whims of superior officers. However, only the internal appeal authorities formally provided for any person who feels his rights have been encroached upon can verify the regularity and the basis of this decision (Queen's Regulations and Orders for the Canadian Forces, Vol. 1 (Adminstration), s. 19.26, adopted to give effect to s. 29 of the National Defence Act). The civil Courts have absolutely no power of supervision or control in this regard." (p. 697-698). |
To say the military grievance procedure may only deal with procedural matters that involve policy, and not with substantive matters, that involve law, would reduce the grievance system envisioned by Section 29 of the National Defence Act to a shambles. By necessary implication the military tribunals in the chain of command, dealing with grievances, must be able to deal with essential questions of law. I fail to see why those officers hearing the grievance should not be able to interpret and determine the effect of directives, orders and regulations which set out the rights and obligations of the Canadian Forces and of its members.
[32] Counsel for Lieutenant Brown submits that I should also consider that Article 16 of QR & O 19.26 intends the intervention of the Court by means of judicial review. In considering this idea Article 16 and 17 of QR & O 19.26 are relevant:
| "(16) A redress authority in receipt of a complaint of an officer or non-commissioned member under this article shall suspend any action in respect of the complaint when the member initiates an action, claim or complaint under an Act of Parliament, other than the National Defence Act, in respect of the matter giving rise to the member's complaint under this article. |
| (17) A redress authority who has suspended action in respect of a complaint pursuant to paragraph (16) shall resume action under this article in respect of that complaint where the other action, claim or complaint has been resolved.". |
Applicable to his argument counsel for the Crown referred me to Hutton v. Canadian Armed Forces (Chief, Defence Staff) (1998) 135 F.T.R. 123, a decision of Mr. Justice Rothstein. In Hutton the applicant seeking judicial review had also filed a complaint with the Canadian Human Rights Commission. Mr. Justice Rothstein pointed out that, by reason of QR & O Articles 19.26(16) and (17), so long as there was a complaint outstanding under the Canadian Human Rights Act the military, in that case the Minister of Defence, was prevented from dealing with a complaint. Thus there was not an alternative remedy. But that state of affairs did not mean the Court should automatically proceed with judicial review. Mr. Justice Rothstein was concerned that the applicant should be able to manipulate the process circumventing the principle enunciated by the Court of Appeal in Anderson (supra), but in the absence of a request for a stay of the Federal Court proceedings, did go on to make a determination in the judicial review proceedings for he felt Mr. Hutton's situation was distinguishable from Anderson by the fact that Mr. Hutton had filed a complaint with the Canadian Human Rights Commission with respect to a decision of the Chief of Defence Staff.
[33] In the present instance Lieutenant Brown has not sought to manipulate the system, as did Mr. Hutton, by asking the Canadian Human Rights Commission to deal with her claim of discrimination and thus the grievance procedure, as an alternative remedy, is still open.
[34] Counsel for Lieutenant Brown also submits that Sections 15(1) and 24(1) of the Charter apply on the basis that his client has been discriminated against and that those making up the grievance procedure are not able to consider Charter arguments. The Charter is not engaged in the present instance. In The Queen v. Généreux [1992] 1 S.C.R. 259, Chief Justice Lamer dealt with narcotics and desertion charges which had resulted in a conviction of the respondent by a General Court Martial. As a part of his unsuccessful argument the respondent relied on Section 15 of the Charter, submitting he was a discrete and insular minority. Chief Justice Lamer stopped short of declaring that military personnel could never be subjects of discrimination or disadvantage within the meaning of Section 15 of the Charter, but did determine that the respondent did not belong to the category of persons coming within Section 15 (see pp. 310 and 311).
[35] To elaborate on my view that the Charter is not engaged, Lieutenant Brown's position is not an attack against legislation, as discriminatory, but rather against a decision of the Director of Military Careers for denial of a request for voluntary release. This is inconsistent with the rights protected by Section 15, which are framed in terms of the law, not in terms of a decision by a tribunal which might be discriminatory: see for example the decision of Chief Justice Dickson in R. v. S. (S.) [1990] 2 S.C.R. 254. In that instance the respondent, a young offender, was charged with possession of stolen goods. His counsel submitted that the Province of Ontario had failed to designate alternative protective programs within the Province's Young Offenders Act, resulting in a violation of the respondent's right to equality before the law, as guaranteed by Section 15 of the Charter. Chief Justice Dickson clearly states that the rights protected by Section 15(1) are all in terms of the law, that is equality, protection and benefit of the law and that the failure of the Attorney General for Ontario to exercise his discretion and implement programs might not be constitutionally attacked. To determine otherwise would potentially open to scrutiny, under the Charter, every permissible exercise of power solely on the basis that it created a distinction in how individuals were treated: R. v. S. (S.) at pp. 284-286. In reaching this conclusion, Chief Justice Dickson quoted from and adopted a portion of the dissenting reasons from the decision of the Ontario Court of Appeal, referring to Section 4 of the Young Offenders Act and Section 15 of the Charter:
| "In my opinion, once it is accepted that s. 4 of the Act does not impose a mandatory duty on the province to establish alternative measures, the Attorney-General for Ontario's decision not to authorize such programs under s. 4 cannot contravene the respondent's equality rights under s. 15(1) of the Charter. His decision was made in accordance with the permissive terms of s. 4. That section, and not the discretionary determination made by the Attorney-General pursuant to its provisions, constitutes 'the law' for the purposes of a s. 15 challenge. If equality is denied alleged young offenders in Ontario, the denial results, not from the Attorney-General's decision or, as the intervenant argues and the trial judge upheld, from the Attorney-General's failure 'to give effect to the will of Parliament', but from the law enacted by Parliament in the exercise of its governmental power over criminal law which authorizes the Attorney-General to proceed precisely as he has. In short, the Attorney-General for Ontario's decision is not 'the law' and that decision cannot in itself violate s. 15." (ibid, p. 285: emphasis added). |
Here the decision of the Director of Military Careers is not the law and thus is not, of itself, a Charter violation.
[36] Even assuming, for the moment, that the restricted release policy of the Canadian Armed Forces is discriminatory, Lieutenant Brown has set out in neither the motion nor her material any discrimination related to her personal characteristics, for the restricted release policy being neutral on its face, Lieutenant Brown must show that the policy impacts on her in a way different from the impact on others in regard to the benefit or protection granted to others. There must be substantive inequality, not merely procedural inequality, which is evident from the impact of the law: see the dissenting reasons of Mr. Justice McIntyre, approved by the majority as to the way in which the Charter should be interpreted and applied, at pp. 299-305 in Andrews v. Law Society of British Columbia [1989] 2 W.W.R. 289 (S.C.C.). To paraphrase Mr. Justice Mason of the Alberta Queen's Bench, in Carroll v. Canada [1995] 3 W.W.R. 264 at 272, on this point, Lieutenant Brown has shown no discrimination relating to her personal characteristics as set out in Section 15 of the Charter, or on grounds analogous to those innumerated in Section 15, whereby she suffers social, political or legal disadvantage, for not only must she demonstrate unequal treatment before and under the law, or that the law has a different impact upon her, but also that the legislative impact of the law discriminates against her. In summary, the plaintiff alleges no discrimination relating to her personal characteristics innumerated in Section 15 of the Charter or on analogous grounds. Thus, as pointed out in Carroll (supra), pp. 272 - 274, the Charter is not engaged.
CONCLUSION
[37] This is an appropriate instance in which to strike out an originating notice of motion. This is not to say Lieutenant Brown lacks a right or that no remedy is available to her. Lieutenant Brown may, depending upon the outcome of the military grievance procedure, have an arguable case for review, but it is not one for review in this Court at this time. Rather the National Defence Act and the Queen's Regulations and Orders establish a simple, straightforward and relatively inexpensive procedure in an adequate forum, experienced in military grievance matters which, as found by the Court of Appeal in Anderson (supra), can provide an adequate alternative remedy. By reason of this available adequate alternative remedy this is an application for judicial review which, at this time, is so clearly improper as to be bereft of any possibility of succeeding. Lieutenant Brown's application is therefore struck out.
[38] I thank counsel for providing full document and case briefs, together with good argument.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
8 April 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: April 8, 1998
COURT NO.: T-228-98
STYLE OF CAUSE: LAURA-LEE BROWN
v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated April 8, 1998
APPEARANCES:
| Mr. Mel Hunt for Applicant |
| Mr. Paul Partridge for Respondent |
SOLICITORS OF RECORD:
| Mr. Mel Hunt for Applicant |
M.R. Hunt & Associates
| George Thomson for Respondent |
Deputy Attorney General of Canada