Date: 20040519
Docket: T-231-04
Citation: 2004 FC 733
Toronto, Ontario, May 19th, 2004
Present: Madam Prothonotary Milczynski
BETWEEN:
CLAYTON G. DONOGHUE
Applicant
and
THE MINISTER OF NATIONAL DEFENCE
Respondent
REASONS FOR ORDER AND ORDER
[1] UPON MOTION dated April 7th, 2004, on behalf of the Respondent, the Minister of National Defence ( the _Minister_), for:
1. an Order striking the Notice of Application dated January 30, 2004;
2. the Minister's costs of the motion; and
3. such further relief as the Minister may advise and this Honourable Court may deem just;
[2] AND UPON reviewing the motion record filed on behalf of the Respondent and the motion record filed by the Applicant;
[3] AND UPON hearing the submissions of the parties on May 10, 2004;
Introduction
[4] The Applicant commenced this application for judicial review after attempting to obtain redress through the Canadian Forces' internal appeal or review procedures for the injustices he perceived to have been subjected to while a Primary Reserve Warrant Officer with the infantry parading with the Grey and Simcoe Foresters of the Canadian Forces, and upon his termination from the Canadian Forces.
[5] The Respondent has brought this motion to strike the Notice of Application on the grounds that the nature of the relief sought by the Applicant is either not available on an application for judicial review (eg. a claim for wrongful dismissal and damages in the amount of $1.5 million), or is not available in the circumstances of this case (eg. quashing decisions that do not exist, or to which the Applicant consented).
[6] The Applicant is obviously frustrated and is seeking some measure of vindication for the wrongs he feels he has suffered. However, for the reasons set out below and having determined that there is no identifiable decision being challenged in a timely manner, I conclude that the Respondent's motion should be granted.
Facts
[7] A brief overview of the facts is necessary to place the application in context.
[8] In or around 1996, the Applicant raised with his superiors, his concerns about his unit in the Canadian Forces. It appears that there had been a number of problems and incidents, the details of which are not relevant for the purposes of this motion. The Applicant's concerns were, however, investigated by Lieutenant S.G. Brown, who found that some of the Applicant's concerns were valid, and others were not. A further result of the investigation was also a finding by Lt. Brown that the Applicant himself had neglected his duty.
[9] These findings were reviewed by the Commanding Officer of the Unit, Lieutenant Colonel G.C. Mann who agreed with the majority of the findings and recommendations of Lt. Brown, but who did not agree that the Applicant had neglected his duty. Lt. Col. Mann found that the Applicant had attempted to deal with the situation but, due to inexperience and lack of training, could not deal with it effectively.
[10] The Applicant requested that the findings and conclusions of Lt. Brown and Lt. Col. Mann be reviewed at a higher level, and took the opportunity to present additional grievances about his treatment in the Canadian Forces. The Applicant's superiors grew concerned about the Applicant's conduct, particularly his passing the chain of command in his pursuit of a resolution of his complaints.
[11] In or around April of 1998, Lt. Col. Mann ordered the Applicant to undergo a medical examination to determine whether he was suffering from any medical problems that might explain his conduct. The Applicant repeatedly refused to undergo the medical examination, but ultimately in the face of the prospect of being suspended from duty, he agreed and the medical examination took place on November 24, 1998.
[12] The result of the medical examination was that the Applicant was given a temporary medical category and required to be employed in low stress situations only. He was also referred for a psychological examination. Before that psychological examination could take place, however, the Applicant was released from the Canadian Forces for non-medical reasons.
[13] Over the summer of 1998, while the Applicant was still refusing to undergo the medical examination, the matter of his continuing at all with the Canadian Forces was put before the Forces' Career Review Board.
[14] According to the Respondent's evidence, a Career Review Board may be held where the Canadian Forces is of the view that a member may no longer be suitable for service. A member whose continued participation in the Canadian Forces is referred to a Career Review Board has the opportunity to make submissions. If the Career Review Board recommends that the member be released, the recommendation is forwarded to the releasing authority for a decision. If the releasing authority decides to accept the recommendation to release the member, the member then has the option to object and/or grieve that decision.
[15] In the case of the Applicant's referral to the Career Review Board, on or about December 15, 1998, the Board found that there were a number of problems with the Applicant's conduct, such that a recommendation was made that the Applicant be released from the Canadian Forces on the grounds that he was unsuitable for further service pursuant to item 5(f) Suitability (c) Chapter 15.01, of the Queen's Orders and Regulations.
[16] The Commander of the Land Force Central Area Headquarters accepted the Career Review Board's recommendation, and the Applicant was released from the Canadian Forces on or about March 23, 1999.
[17] The Applicant grieved his release from the Canadian Forces. Among those who reviewed the Applicant's grievance, Lieutenant Commander Sylvain M. Allard expressed some concern with the process that had led up to the Applicant's release from the Canadian Forces. Specifically, Lt. Commander Allard was concerned about whether the Career Review Board should have considered whether the Applicant's unsuitable conduct was due to a possible medical condition.
[18] In his report dated November 22, 1999, Lt. Commander Allard recommended, among other things:
(i) the cancellation of the Applicant's release from the Canadian Forces; and
(ii) that the Applicant be directed to attend a medical examination before being permitted to participate in militia activities.
[19] The Applicant was given an opportunity to respond to Lt. Commander Allard's report, and did so on December 12, 1999, whereupon he wrote that he accepted the report and its recommendations, stating that he endorsed "the required action for this matter to proceed".
[20] However, the next step in the Canadian Forces' internal process was for the Chief of Land Staff, Lieutenant General W.C. Leach to review Lt. Commander Allard's report. Lt. General Leach did not accept all of the report's findings or recommendations. While he agreed with the Career Review Board that the Applicant should be released, Lt. General also determined that the Applicant should be provided another opportunity to remain with the Canadian Forces, provided he was medically fit. In a letter dated January 20, 2000, Lt. General Leach advised the Applicant that he was required to undergo a medical examination before resuming participation in his unit activities, except medical related activities.
[21] On or around March 24, 2000, it was further clarified that the Applicant was not to be "reinstated" (as reinstatement was available as a remedy only for those released on military charges that were subsequently overturned). Rather, subject to the results of the medical examination, the Applicant would be "re-enrolled". The Applicant accepted this decision.
[22] It is unclear what happened over the next few months. Counsel for the Respondent and the Applicant both indicated in their submissions that something went wrong on both sides in attempting to schedule and attend the required medical examination. In any event, about one year later, on March 6, 2001, the Applicant finally attended the medical examination. He was found not to be suitable for re-enrollment due to poor vision, a finding to which the Applicant took great exception and attributed to the events that transpired in and after 1996.
[23] The Applicant was advised by letter dated May 17, 2001 from Lt. Colonel S. Archambault that he had the option to pursue having the medical finding reviewed and the medical requirement regarding his vision waived. That letter explained that process and also advised the Applicant what would occur in the event those steps were not taken. Lt. Colonel Archambault further requested the Applicant to reply with his decision about how he wanted to proceed in the following terms:
If you decide to decline the CLS offer of re-enrollment, I would like to be so informed. In this case, the medical revue [sic] of you [sic] file will be closed and your file submitted to DND CF LA [for final determination regarding pay]. Otherwise, the medical review process will continue....I would greatly appreciate if you would confirm to me, in writing, your decision concerning your re-enrolment.
[24] In a letter dated May 30, 2001, the Applicant advised the Canadian Forces that he was no longer interested in being re-enrolled. He stated:
The purpose of this letter is to give authorization for my file to be transferred from the Director Land Personnel 4 for Chief of Land Staff, to Claims and Litigations Dept. of DND.
...
Eventually, I could see being re-enrolled was not going to be beneficial either to myself or to the Canadian Arm [sic] Forces. Terminating this perceived unscrupulous proceeding, of re-enrolment; and select for an alternative direction, appears to be a more favourable situation, at this time.
...
In closing, may I again say that yes, I wish for this file to be transferred to the (DND/ CF LA CCL) office.
[25] In addition, on or about October 2, 2002, the Applicant himself requested that Canadian Forces records be revised to change his release category under the Queen's Orders and Regulations from item 5(f) (unsuitable for further service designation), to item 4(c) (release on request). The requested change was made on or about May 26, 2003.
[26] With respect to any outstanding monies owing to the Applicant upon his release, in a separate determination made and communicated to the Applicant around October 21, 2001, the Canadian Forces advised the Applicant that he was not entitled to any pay for unperformed service due to his 1998 placement in a temporary medical category for reasons related to stress.
[27] The Applicant continued to pursue his cause through a variety of measures outside the Canadian Forces, including indicating that he would commence litigation, and sending a number of letters to successive Ministers of Defence. Eventually, by the within Notice of Application dated January 30, 2004, the Applicant commenced this proceeding in which he seeks:
(i) a writ of certiorari quashing the decision of termination by General Hall dated November 1998;
(ii) a writ of certiorari quashing the decision of Lt. Commander Allard dated November 22, 1999 to require a medical examination as a condition of re-enrollment;
(iii) a finding that he was wrongfully dismissed;
(iv) a writ of mandamus directing the Respondent to pay damages to the Applicant; and
(v) a declaration that damages in the amount of $1.5 million be paid to the Applicant.
Analysis
[28] It is clear that the onus is a heavy one on a respondent seeking to strike a notice of application for judicial review. However, it is also clear that the Court will order that a notice of application be struck where it is so clearly improper as to be bereft of any possibility of success (David Bull Laboratories (Canada) inc. Pharmacia Inc., [1994] F.C.J. No.1629 (C.A.); Wenzel v. Canada (Minister of Defence), [2003] F.C.J. No.373 (T.D.).
[29] With respect to the Applicant's Notice of Application, each of the items of relief referred to above, are addressed separately and in turn as follows.
(i) Quashing the Decision of General Hall dated November, 1998
[30] The record filed with the Court does not disclose any decision by a General Hall, and no final decision regarding the release of the Applicant from the Canadian Forces was taken in November, 1998.
[31] What is clear from the record is that the Applicant was released in March, 1999. He pursued the Canadian Forces' internal grievance and review process, and successfully had that decision varied to one in which he could be re-enrolled subject to the satisfaction of certain conditions. However, by his own subsequent actions, the Applicant ultimately accepted the release, even taking the step to change the reasons for the release that would be recorded in his file.
[32] There is therefore no basis for the Applicant to pursue or obtain this heading of relief.
(ii) Quashing the Decision of Lt. Commander Allard
[33] Section 18.1(3)(b) of the Federal Courts Act provides that the Federal Court has the power to quash, set aside, or set aside and refer back for determination, a decision, order, act or proceeding of a federal board, commission or other tribunal. In the case of the Applicant, Lt. Commander Allard did not make a decision that is subject to judicial review. Lt. Commander Allard simply conducted a review of the Career Review Board's recommendation to release the Applicant, and himself made recommendations that were then the subject of review by the Chief of Land Staff, Lieutenant General W.C. Leach. In any event, the Applicant at the relevant time accepted, and as noted above, expressly endorsed Lt. Commander Allard's recommendations for the terms and conditions for the Applicant's re-enrolment and subsequently voluntarily withdrew from the process prior to having exhausted all of the available avenues of review within the Canadian Forces own process and procedures.
[34] There is therefore no basis for the Applicant to pursue or obtain this heading of relief.
(iii) Claim for Wrongful Dismissal
[35] Members of the Canadian Forces cannot bring an action for wrongful dismissal (Gallant v. The Queen in Right of Canada (1978), 91 D.L.R.(3d) 695 (F.C.T.D.)). Moreover, proceedings for a declaration that a member of the Canadian Forces was wrongfully dismissed would not, as noted in Campbell v. Canada [1979] F.C.J. No.118 (T.D.), aff'd [1981] F.C.J. Mo.414 (C.A), serve any useful purpose and is a head of relief that is not available to the Applicant.
(iv) Damages
[36] The Applicant cannot obtain damages in the Federal Court on an application for judicial review; such relief is only available by way of action: (Lussier v. Collin, [1985] 1 F.C. 124 (C.A.)).
(v) Timeliness
[37] Section 18.2(2) of the Federal Courts Act requires that an application for judicial review be commenced within 30 days after the time the decision that is the subject of review was first communicated to the party directly affected by it, or within any further time that a judge of the Federal Court may grant in exercising his or her discretion to allow an extension of time.
[38] I accept the Respondent's submission that the Applicant could not bring an application for judicial review of the decision to release him effective March 23, 1999 because he was pursuing the Canadian Forces' internal grievance process to challenge that decision. The Applicant could, however, have challenged the decision of March 24, 2000 that he be given the opportunity to re-enroll subject to a satisfactory medical examination. Rather, he accepted this decision and participated in the process until such time when it was determined on his medical examination that he did not meet the Canadian Forces medical standard for vision requirements. He then voluntarily withdrew from the process in May of 2001, but took no steps to commence proceedings until January of 2004, at which time he failed to seek an extension of time.
[39] On this basis alone, having regard to the passage of time and the attendant prejudice caused to the Respondent, the Notice of Application ought to be struck out.
Conclusion
[40] It is clear and beyond doubt that the Applicant cannot succeed on any basis claimed. The decisions identified by the Applicant to be the subject of the judicial review are not proper or final decisions that are capable of being reviewed. The first decision (Hall) does not appear to exist. The second decision (Allard) is simply a set of recommendations that the Applicant himself accepted.
[41] With respect to the Applicant's claim for a declaration that he was wrongfully dismissed, and damages in the amount of $1.5 million, for the reasons above, these are claims and remedies that are not available to members of the Canadian Forces when they are released, or are not available on an application for judicial review. As noted above, while the Court appreciates the level of frustration that the Applicant has experienced, and his desire to obtain redress, the claims and remedies are not available as he has framed them from this Court.
ORDER
THIS COURT ORDERS that:
1. The Applicant's Notice of Application for Judicial Review dated January 30, 2004 is struck out in its entirety, without leave to amend.
2. Each party shall bear their own costs of this motion.
"Martha Milczynski"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-231-04
STYLE OF CAUSE: CLAYTON G. DONOGHUE
Applicant
and
THE MINISTER OF NATIONAL DEFENCE
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 10, 2004
REASONS FOR ORDER
AND ORDER BY : MILCZYNSKI P.
DATED: MAY 19, 2004
APPEARANCES:
Mr. Clayton G. Donoghue FOR THE APPLICANT,
ON HIS OWN BEHALF
Ms. Liz Tinker FOR THE RESPONDENT
SOLICITORS OF RECORD:
Clayton G. Donoghue
Orillia, Ontario FOR THE APPLICANT,
ON HIS OWN BEHALF
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040519
Docket: T-231-04
BETWEEN:
CLAYTON G. DONOGHUE
Applicant
and
THE MINISTER OF NATIONAL DEFENCE
Respondent
REASONS FOR ORDER
AND ORDER