Date: 20011009
Docket: T-722-01
Neutral citation: 2001 FCT 1078
Toronto, Ontario, Tuesday the 9th day of October, 2001
PRESENT: Peter A. K. Giles, Esquire
Associate Senior Prothonotary
BETWEEN:
LEWIS GLENN DAWE
Plaintiff
-and-
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
GILES A.S.P.
[1] By the motion before me, the Defendant seeks an order striking out the statement of claim. The statement of claim is one in which the Plaintiff alleges he was forced to resign because his state of health was such that he could not report for duty in Milestone, Saskatchewan as ordered. The Plaintiff seeks general damages for failure to give proper notice of termination, general damages for pain and suffering, special damages for loss of income, special damages for loss of benefits, special damages for moving expenses, these damages allegedly arise from his being posted for active duty when it was known that he could do no more than non-operational work.
[2] Being unable to report as ordered he alleges he was constructively dismissed. He also alleges that the R.C.M.P. revealed confidential personal medical information to prospective employers in breach of the provisions of the Privacy Act and thereby made it difficult for him to obtain another job. He alleges he was given poor references and he alleges negligence and discrimination under the Canadian Charter of Rights and Freedoms. This is also related to the failure to accommodate his physical disability. Which physical disability is alleged arose from an accident occurring while he was employed. The Royal Canadian Mounted Police Act in sections 31-36 provides for a grievance procedure. The Privacy Act in sections 29-30 also provide a procedure for seeking relief.
[3] I note a number of cases have been decided with respect to persons who have left the employment of the Royal Canadian Mounted Police. In McMillan v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 171 (T.D.) Q.L. the Plaintiff had resigned after suffering ongoing sexual harassment for 10 years. In that case, it was held that the statement of claim should not be struck out. InRiabko v. Canada (Royal Canadian Mounted Police), [1999] F.C.J. No. 1289 which distinguished the McMillan case, the Court pointed out that McMillan had resigned from the force before she commenced her claim against the Crown. It would appear that Ms. McMillan got tired of being harassed and decided to leave. Riabko not having resigned it was held ought to have availed himself of the grievance procedures. In this case, the Plaintiff was ordered to report to Milestone, Saskatchewan for regular duty on very short notice. He would no doubt have been in breach of rules and regulations had he merely failed to do so and commenced grievance proceedings in lieu of moving. It would appear that he may have felt compelled to resign rather than have at long last decided to resign.
[4] I think a fortiori, the Plaintiff here should be allowed to continue with his action in the same way that McMillan was.
ORDER
1. The motion is therefore dismissed.
"Peter A.K. Giles"
Toronto, Ontario
October 9, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-722-01
STYLE OF CAUSE: LEWIS GLENN DAWE
Plaintiff
-and-
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
AND ORDER BY: GILES A.S.P.
DATED: TUESDAY, OCTOBER 9, 2001
WRITTEN SUBMISSIONS BY: Mr. Eric Durnford, QC
For the Plaintiff
Ms. Leanne M. Wrathall
For the Defendant
SOLICITORS OF RECORD: McINNES COOPER
1601 Lower Water Street
P.O. Box 730
Halifax, Nova Scotia
Tel: (902) 425-1362
Fax: (902) 425-4197
For the Plaintiff
Morris Rosenberg
Deputy Attorney General of Canada
Halifax, Nova Scotia
For the Defendant
FEDERAL COURT OF CANADA
Date: 20011009
Docket: T-722-01
BETWEEN:
LEWIS GLENN DAWE
Plaintiff
-and-
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER
AND ORDER