Date: 20051118
Docket: T-617-05
Citation: 2005 FC 1559
Montréal, Quebec, November 18, 2005
PRESENT: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Plaintiff/
Defendant to counterclaim
and
STÉPHANE NÉRON
Defendant/
Plaintiff by counterclaim
REASONS FOR ORDER AND ORDER
[1] UPON the motion by the plaintiff and defendant to counterclaim (the plaintiff) to obtain an order dismissing with costs the defendant’s amended counterclaim and striking paragraphs 2.1 to 2.4, 5.1 to 5.5, 6.2, 7.1 to 7.21, 7.23, 7.24, 24, 25, 26 and 27 of the amended defence;
[2] WHEREAS the motion relies expressly on paragraphs 221(1)(a) and (f) of the Federal Courts Rules (the Rules) and implicitly on section 208 and paragraphs 298(2)(a) and (b) of the Rules;
[3] UPON reading and examining the motion records submitted by the parties in the present motion;
[4] WHEREAS it was conceivable and appropriate for the plaintiff to submit the present motion before advancing further in the matter;
- Concerning the Defendant’s Amended Counterclaim (the Claim)
[5] WHEREAS this Claim consists essentially of subparagraphs 30(a) to (h);
[6] WHEREAS, for the following reasons, elaborated upon further by the plaintiff in the motion record, these subparagraphs of the Claim should be struck out:
- concerning subparagraphs 30(a), (b), (d), (e), (f) and (h), it is correct to assume that the defendant’s failure to use the internal process for redress provided under section 29 of the National Defence Act, R.S.C. 1985, c. N-5, as amended, cannot result in giving this court jurisdiction to address these grievances indirectly as a negligence action (see Vaughan v. Canada, [2005] 1 S.C.R. 146);
- concerning subparagraphs 30(b), (e), (g) and (h), the claims expressed therein are prescribed under section 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (the Liability Act) and articles 2880, 2925 and 2926 of the Civil Code of Québec;
- concerning subparagraphs 30(a) and ( c), the claims expressed therein are also premature in light of section 111 of the Pension Act, R.S.C. 1985, c. P-6 and section 9 of the Liability Act.
- Concerning the Defendant’s Amended Defence (the Defence)
[7] Concerning paragraphs 2.1 to 2.4, 5.1 to 5.5, 6.2, 7.1 to 7.21, 7.23, 7.24, 24, 25, 26 and 27 of the Defence, the Court finds that all those paragraphs relate to events that were, or could have been, the subject of a grievance under section 29 of the National Defence Act. This Court has no jurisdiction to grant any remedy whatsoever concerning such events, since the defendant failed to file a grievance or apply for judicial review, where appropriate.
[8] Furthermore, these paragraphs cannot be considered material and relevant to the facts alleged in the plaintiff’s statement of claim.
[9] Consequently, the Court:
ALLOWS the present motion by the plaintiff, with costs;
STRIKES OUT the defendant’s amended counterclaim, as well as paragraphs 2.1 to 2.4, 5.1 to 5.5, 6.2, 7.1 to 7.21, 7.23, 7.24, 24, 25, 26 and 27 of the amended Defence;
EXTENDS the plaintiff’s time for serving and filing a reply until December 2, 2005.
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“Richard Morneau” |
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Prothonotary |
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-617-05
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Plaintiff/Defendant to counterclaim
and
STÉPHANE NÉRON
Defendant/Plaintiff by counterclaim
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 7, 2005
REASONS FOR ORDER BY: Richard Morneau, Prothonotary
DATED: November 18, 2005
APPEARANCES:
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Antoine Lippé |
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For the Plaintiff/Defendant to counterclaim |
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Stéphane Néron |
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For the Defendant/Plaintiff by counterclaim |
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SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada |
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For the Plaintiff/Defendant to counterclaim |
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