Anderson v. Canada (Minister of National Defence) et al., (1996) 205 N.R. 350 (FCA)

• Judge: Stone, Linden, JJ.A., and Henry, D.J.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 11, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 205 N.R. 350 (FCA)

Anderson v. Can. (1996), 205 N.R. 350 (FCA)

MLB headnote and full text

Operations Officer, Fourth Maritime Operations Group, Commander, Fourth Maritime Operations Group, Commanding Officer, Fleet Maintenance Group Pacific, Commander, Maritime Forces Pacific, Commander, Maritime Command, Chief of the Defence Staff and Minister of National Defence (appellants/respondents) v. Robert David Anderson (respondent/applicant)

(A-722-95)

Indexed As: Anderson v. Canada (Minister of National Defence) et al.

Federal Court of Appeal

Stone, Linden, JJ.A.,

and Henry, D.J.

October 24, 1996.

Summary:

Collinson, the Commander, Fourth Mari­time Operations Group, ordered a summary investigation of alleged harassment and other abuse by Anderson. Subsequently, Collinson placed Anderson on counselling and proba­tion. Anderson applied for redress of griev­ance. Johnston, the Commander, Maritime Forces Pacific, denied the application. Anderson applied for judicial review to quash Johnson's decision. Anderson named seven respondents in the chain of command starting with the officer below Collinson and ending with the Minister of National Defence. On an interlocutory motion, the respondents applied for (1) an order striking out the application for judicial review on the ground that the decision in question did not constitute a decision of a board or tribunal pursuant to s. 18.1 of the Federal Court Act. In the alternative, the respondents requested (2) an order striking out the names of all of the respondents but Johnston. In the further alternative, the respondents applied for (3) a 30 day extension to serve and file affidavits in response to the application for judicial review.

The Federal Court of Canada, Trial Divi­sion, in a judgment reported at 103 F.T.R. 27, determined the issues accordingly. The court refused to strike Anderson's application for judicial review. The respondents appealed.

The Federal Court of Appeal allowed the appeal and held that the applica­tion for judicial review should be struck.

Armed Forces - Topic 8815

Offences - Punishments - Review - Jur­isdiction - Judicial review - Collinson, the Commander, Fourth Maritime Oper­ations Group, ordered a summary investi­gation of alleged harassment by Anderson - Subse­quent­ly, Collinson placed Anderson on "counselling and probation" - Anderson applied for redress of grievance - John­ston, the Commander, Maritime Forces Pacific, denied the application - Anderson applied for judicial review to quash John­ston's decision - A motions judge rejected the respondents' interlocu­tory motion for an order striking out An­derson's applica­tion for judicial review on the grounds that Johnston's decision did not constitute a decision of a board or tribunal pursuant to s. 18.1 of the Federal Court Act and that Anderson had not exhausted his right to appeal up the chain of command under the Regulations - The Federal Court of Appeal determined that an adequate alter­nate remedy existed and struck out the application for judicial review - See para­graphs 4 to 15.

Armed Forces - Topic 8815

Offences - Punishments - Review - Jur­isdiction - Judicial review - Collinson, the Commander, Fourth Maritime Oper­ations Group, ordered a summary investi­gation of alleged harassment by Anderson - Subsequently, Collinson placed Anderson on "counselling and probation" - Anderson applied for redress of grievance - John­ston, the Commander, Maritime Forces Pacific, denied the application - Anderson applied for judicial review to quash John­ston's decision - On an inter­locutory motion, the respondents applied for an order striking out Anderson's appli­cation for judicial review on the ground that Johnston's decision did not constitute a decision of a board or tribunal within the meaning of s. 18.1(2) of the Federal Court Act - The Federal Court of Appeal deter­mined that Johnston's decision fell within the meaning of s. 18.1(2), where it settled the matter before him - See paragraph 16.

Armed Forces - Topic 8815

Offences - Punishments - Review - Jur­isdiction - Judicial review - Parties - Collinson, the Commander, Fourth Mari­time Operations Group, ordered a summary investigation of alleged harassment by Anderson - Subsequently, Collinson placed Anderson on "counselling and probation" - Anderson applied for redress of grievance - Johnston, the Commander, Maritime Forces Pacific, denied the appli­cation - Anderson applied for judicial review to quash Johnston's decision - Anderson named seven respondents in the chain of command starting with the officer below Collinson and ending with the Min­ister of National Defence - The respon­dents moved to strike all respondents except Johnston - The motions judge stated that the proper respondents were the Minister and the Chief of the Defence Staff - The Federal Court of Appeal held that, at this stage, the only appropriate respondent was Johnston (the person whose decision was sought to be reviewed) - See paragraphs 17 to 18.

Courts - Topic 4032

Federal Court of Canada - Jurisdiction - Trial Division - Military matters - [See first Armed Forces - Topic 8815 ].

Courts - Topic 4052

Federal Court of Canada - Jurisdiction - Trial Division - Requirement of lack of other remedy - [See first Armed Forces - Topic 8815 ].

Courts - Topic 4071.1

Federal Court of Canada - Jurisdiction - Trial Division - Practice - Judicial review - Applications - General - Collinson, the Commander, Fourth Maritime Operations Group, ordered a summary investigation of alleged harassment by Anderson - Subsequently, Collinson placed Anderson on "counselling and probation" - Anderson applied for redress of grievance - John­ston, the Commander, Maritime Forces Pacific, denied the application - Anderson applied for judicial review to quash John­ston's decision and named seven respon­dents in the chain of command starting with the officer below Collinson and end­ing with the Minister of National Defence - The respondents moved to strike out all respondents except Johnston - The Federal Court of Appeal affirmed that Collinson's decision could not be reviewed on the application to review Johnston's decision because rule 1602(4) required an applica­tion "in respect of a single decision" - See paragraph 19.

Cases Noticed:

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 4].

Dressler v. Canada (Minister of National Defence) et al. (1989), 30 F.T.R. 13 (T.D.), refd to. [para. 5].

Gayler v. Director of Personnel, Careers Administration, Other Ranks, National Defence Headquarters et al. (1994), 88 F.T.R. 241 (T.D.), refd to. [para. 5].

Lingley v. New Brunswick Board of Review Under Section 547 of the Crimi­nal Code of Canada, [1976] 1 F.C. 98; 13 N.R. 22 (F.C.A.), refd to. [para. 16].

MacInnis v. Canada (Attorney General) et al., [1994] 2 F.C. 464; 166 N.R. 57 (F.C.A.), refd to. [para. 19].

Statutes Noticed:

Canadian Forces Administrative Order 26-17 - see National Defence Regulations (Can.).

Federal Court Act, R.S.C. 1985, c. F-7, sect. 18.1(2) [para. 1].

Federal Court Rules, rule 1602(4) [para. 19].

National Defence Act, R.S.C. 1985, c. N-5, sect. 29 [para. 6].

National Defence Regulations (Can.), Canadian Forces Administrative Order 26-17, art. 1, art. 6 [para. 8].

National Defence Regulations (Can.), Queen's Regulations and Orders for the Canadian Forces, art. 10(a)(ii) [para. 11]; art. 10(b)(ii) [para. 10]; art. 19.26, art. 19.26(10), art. 19.26(11), art. 19.26(12) [para. 7]; art. 19.27(1) [para. 14].

Queen's Regulations and Orders for the Canadian Forces - see National Defence Regulations (Can.).

Counsel:

Leigh A. Taylor, for the appellant;

Duncan J. Boan, for the respondent.

Solicitors of Record:

George Thomson, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the appellant;

Hunt and Boan & Associates, Victoria, British Columbia, for the respondent.

This appeal was heard on October 11, 1996, at Vancouver, British Columbia, before Stone, Linden, JJ.A., and Henry, D.J., of the Federal Court of Appeal. On October 24, 1996, Stone, J.A., delivered the follow­ing judgment for the Court of Appeal.