Canada v. Manuge, 2009 FCA 29 (2009)

Extract

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Canada v. Manuge, 2009 FCA 29 (2009)

Date: 20090203

Docket: A-262-08

Citation: 2009 FCA 29

CORAM: LÉTOURNEAU J.A.

NOËL J.A.

BLAIS J.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant and

DENNIS MANUGE

Respondent

Hearing held at Toronto , Ontario , on December 16, 2008 .

Judgement delivered at Ottawa , Ontario , on February 3,2009.

REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.

CONCURRED IN BY: NOËL J.A.

BLAIS J.A.

Date: 20090203

Docket: A-262-08

Citation: 2009 FCA 29

CORAM: LÉTOURNEAU J.A.

NOËL J.A.

BLAIS J.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant and

DENNIS MANUGE

Respondent

REASONS FOR JUDGMENT

LÉTOURNEAU J.A.

Issues

[1] The procedure used by the respondent in this case, which is the subject of the appeal, runs directly counter to two legal maxims: one cannot do indirectly what one is prohibited from doing directly, and no one may take the law into his or her own hands.

[2] This appeal from a decision of the Federal Court raises the following three procedural issues. They do not concern the merits of the case. Could the respondent proceed by way of action rather than by application for judicial review to challenge the lawfulness of section 24 of Part III(B) of insurance policy SISIP901102 (hereafter SISIP), its constitutional validity and the fact that it infringes his right to equality under section 15 of the Charter of Rights and Freedoms (Charter)? Part III(B) of the SISIP governs the payment of long-term disability benefits for members of the Canadian Forces who took out this policy and who were released from the Forces after November 30, 1999 .

[3] Was the respondent then entitled, with the blessing of a judge of the Federal Court, to transform his action into a class proceeding?

[4] Finally, assuming that the respondent had to proceed by judicial review, which he did not do, could the judge fictitiously transform the respondent’s action into a judicial review and then transform it once again into an action before finally transforming it into a class proceeding? As we will see, this is in practice what the judge did in his alternative approach to resolving the problem that was submitted to him. I think that to ask the question is to answer it. However, I will give some additional explanations for this answer.

[5] To complete the picture, I would add that the respondent complains that the appellant did not fulfil her obligations under public law, breached her fiduciary duty toward the respondent, acted in bad faith and was unjustly enriched by her conduct.

[6] On the basis of this series of alleged infringements, the respondent claims reimbursement of the amounts that were deducted from his SISIP income and seeks general, punitive, exemplary and enhanced damages, plus interest and costs.

[7] The judge ...

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