Bernath v. Canada, (2005) 275 F.T.R. 232 (FC)

CourtFederal Court (Canada)
Case DateMarch 02, 2005
JurisdictionCanada (Federal)
Citations(2005), 275 F.T.R. 232 (FC);2005 FC 1232

Bernath v. Can. (2005), 275 F.T.R. 232 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2006] F.T.R. TBEd. JA.023

Patrick Bernath (demandeur) v. Sa Majesté la Reine (défenderesse)

(T-1683-02; 2005 FC 1232; 2005 CF 1232)

Indexed As: Bernath v. Canada

Federal Court

Tabib, Prothonotary

September 9, 2005.

Summary:

The plaintiff was a member of the Canadian Armed Forces. After 13 years of service and suffering from a shoulder injury and post traumatic stress syndrome, the plaintiff obtained his release. He filed a grievance, seeking a determination from the Chief of Staff as to the reasonableness of his assignment to Haiti given his physical condition; the quality, sufficiency and appropriateness of the medical treatment received; and the administrative treatment of his medical condition and his application for release. The grievance resulted in certain remedies of an administrative nature, but no additional monetary compensation. The plaintiff sued the federal Crown for monetary relief under s. 24 of the Charter, alleging Charter breaches. The Crown moved to dismiss the action and strike out the proceeding on the basis that the decision on the grievance had the effect of res judicata or that the plaintiff's action was an abuse of process. Alternatively, the Crown argued that the cause of action as a whole was out of time.

A Prothonotary of the Federal Court allowed the motion and dismissed the action where it was an abuse of process.

Armed Forces - Topic 7

General - Grievances - Civil action barred - [See Practice - Topic 2239 ].

Armed Forces - Topic 8402

Grievances - General - Jurisdiction - After 13 years of service in the Canadian Armed Forces, the plaintiff obtained his release - He filed a grievance, seeking a determination from the Chief of Staff as to the reasonableness of his assignment to Haiti given his physical condition; the quality, sufficiency and appropriateness of the medical treatment received; and the administrative treatment of his medical condition and his application for release - The grievance resulted in certain remedies of an administrative nature, but no additional monetary compensation - The plaintiff sued the federal Crown for monetary relief under s. 24 of the Charter - The Crown moved to dismiss the action and strike out the proceeding on the basis that the decision on the grievance had the effect of res judicata - A Prothonotary of the Federal Court stated that the first step in determining whether res judicata applied was determining the prior decision maker's jurisdiction to make the decision - The court held that under s. 29 of the National Defence Act, the Chief of Staff had the requisite jurisdiction to determine, in the context of a claim for redress or a grievance, an officer's right to receive monetary compensation, including compensation in the form of relief under s. 24 of the Charter - See paragraphs 27 to 39.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - After 13 years of service in the Canadian Armed Forces, the plaintiff obtained his release - He filed a grievance, seeking a determination from the Chief of Staff as to the reasonableness of his assignment to Haiti given his physical condition; the quality, sufficiency and appropriateness of the medical treatment received; and the administrative treatment of his medical condition and his application for release - The grievance resulted in certain remedies of an administrative nature, but no additional monetary compensation - The plaintiff sued the federal Crown for monetary relief under s. 24 of the Charter - The Crown moved to dismiss the action and strike out the proceeding on the basis that the decision on the grievance had the effect of res judicata - A Prothonotary of the Federal Court held that res judicata did not apply - Although the plaintiff's grievance sought the same remedy as his action, Charter issues were not fundamental to the Chief of Staff's decision or even necessarily or implicitly included in the reasoning that led to the decision - See paragraphs 39 to 47.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - After 13 years of service in the Canadian Armed Forces, the plaintiff obtained his release - He filed a grievance, seeking a determination from the Chief of Staff as to the reasonableness of his assignment to Haiti given his physical condition; the quality, sufficiency and appropriateness of the medical treatment received; and the administrative treatment of his medical condition and his application for release - The grievance resulted in certain remedies of an administrative nature, but no additional monetary compensation - The plaintiff sued the federal Crown for monetary relief under s. 24 of the Charter - The Crown moved to dismiss the action and strike out the proceeding on the basis that the decision on the grievance had the effect of res judicata - A Prothonotary of the Federal Court held that res judicata did not apply - However, since the plaintiff specifically sought a determination from the Chief of Staff on precise issues, he was bound by the specific findings on these issues and could not seek to obtain a different conclusion from this court in regard to them - See paragraphs 48 to 52.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Armed Forces - Topic 8402 and both Estoppel - Topic 377 ].

Estoppel - Topic 388

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Decisions of administrative tribunals - [See Armed Forces - Topic 8402 and both Estoppel - Topic 377 ].

Practice - Topic 2228

Pleadings - Striking out pleadings - Grounds - Res judicata - [See both Estoppel - Topic 377 ].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - After 13 years of service in the Canadian Armed Forces, the plaintiff obtained his release - He filed a grievance, seeking a determination from the Chief of Staff as to the reasonableness of his assignment to Haiti given his physical condition; the quality, sufficiency and appropriateness of the medical treatment received; and the administrative treatment of his medical condition and his application for release - The grievance resulted in certain remedies of an administrative nature, but no additional monetary compensation - The plaintiff sued the federal Crown for monetary relief under s. 24 of the Charter - The Crown moved to dismiss the action and strike out the proceeding on the basis of abuse of process - A Prothonotary of the Federal Court allowed the motion - Apart from the characterization of the Crown's impugned acts as Charter breaches and the reference to s. 24 of the Charter, the fundamental right giving rise to the action was exactly the same as that submitted to and determined by the Chief of Staff - Allowing the action to proceed would amount to "serial pleading" or to "splitting" the case, which was the very essence of abuse of process - Further, there were no exceptional circumstances that would justify allowing the plaintiff to proceed with his action - See paragraphs 53 to 72.

Practice - Topic 5361

Dismissal of action - Grounds - General and want of prosecution - Abuse of process - [See Practice - Topic 2239 ].

Cases Noticed:

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 19].

Procter & Gamble Pharmaceuticals Canada Inc. et al. v. Canada (Minister of Health) et al., [2004] 2 F.C.R. 85; 313 N.R. 380 (F.C.A.), refd to. [para. 20].

Maynard v. Maynard, [1951] S.C.R. 346, refd to. [para. 20].

Sauve v. Canada, [2002] F.T.R. Uned. 497; 2002 FCT 721, refd to. [para. 21].

Grant et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1990] 2 F.C. 351; 31 F.T.R. 31 (T.D.), refd to. [para. 26].

Musqueam Indian Bank v. Canada - see Grant et al. v. Canada (Minister of Indian and Northern Affairs) et al.

Jones v. Canada et al. (1994), 87 F.T.R. 190 (T.D.), refd to. [para. 35].

Pilon v. Canada (1996), 119 F.T.R. 269 (T.D.), refd to. [para. 36].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301, refd to. [para. 37].

Desrosiers v. Canada (Attorney General) (2004), 266 F.T.R. 7; 2004 FC 1601, refd to. [para. 37].

Galarneau v. Canada (Attorney General) et al., [2005] F.T.R. TBEd. JA.031; 2005 FC 39, refd to. [para. 37].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 42].

Dumont v. Canada (2003), 323 N.R. 316 (F.C.A.), appld. [para. 44].

Drolet v. Canada - see Dumont v. Canada.

Leblanc et al. v. Canada et al. (2005), 339 N.R. 244; 2005 FCA 234, refd to. [para. 48].

Rasanen v. Rosemount Instruments Ltd. (1994), 68 O.A.C. 284; 17 O.R.(3d) 267 (C.A.), refd to. [para. 48].

Hoystead v. Commissioner of Taxation, [1926] A.C. 155 (P.C.), refd to. [para. 54].

Doering v. Grandview (Town), [1976] 2 S.C.R. 621; 7 N.R. 299, refd to. [para. 54].

Canam Enterprises Inc. v. Coles et al. (2000), 139 O.A.C. 1; 51 O.R.(3d) 481 (C.A.), refd to. [para. 56].

Solomon v. Smith and Montreal Trust Co., [1988] 1 W.W.R. 410; 49 Man.R.(2d) 252 (C.A.), refd to. [para. 57].

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64, refd to. [para. 65].

Gallant v. Canada (1978), 91 D.L.R.(3d) 695 (F.C.T.D.), refd to. [para. 66].

Canada v. Maritime Group (Canada) Inc. et al., [1995] 3 F.C. 124; 185 N.R. 104 (F.C.A.), refd to. [para. 73].

Statutes Noticed:

National Defence Act, R.S.C. 1985, c. N-5, sect. 29 [para. 34].

Counsel:

Jacques Ferron and Gilles Savard, for the plaintiff;

Pierre Salois and Mariève Sirois Vaillancourt, for the defendant.

Solicitors of Record:

Jacques Ferron, Quebec, Quebec, for the plaintiff;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa Ontario, for the defendant.

This motion was heard on March 2, 2005, at Montreal, Quebec, with additional submissions received on April 1 and 28, 2005. by Tabib, Prothonotary, of the Federal Court, who delivered the following judgment on September 9, 2005.

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12 practice notes
  • Moodie v. Canada (Minister of National Defence), 2008 FC 1233
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • September 22, 2008
    ... 2007 FCA 400 , refd to. [para. 31]. Manuge v. Canada (2008), 329 F.T.R. 167 ; 2008 FC 624 , refd to. [para. 31]. Bernath v. Canada (2005), 275 F.T.R. 232; 2005 FC 1232 (Protho.), revd. (2007), 321 F.T.R. 1 ; 2007 FC 104 , dist. [para. 34]. R. v. 974649 Ontario Inc. et al., [2001] 3 ......
  • Jones v. Canada (Attorney General), 2007 FC 386
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • April 13, 2007
    ...87 F.T.R. 190 (T.D.), refd to. [para. 38]. Pilon v. Canada (1996), 119 F.T.R. 269 (T.D.), refd to. [para. 38]. Bernath v. Canada (2005), 275 F.T.R. 232 (T.D. Protho.), affd. (2007), 375 N.R. 179 ; 2007 FCA 400 , refd to. [para. Lazar v. Canada (Attorney General) et al. (1999), 168 F.T......
  • Bernath v. Canada, 2007 FC 104
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • October 18, 2006
    ...the Crown argued that the cause of action as a whole was out of time. A Prothonotary of the Federal Court, in a decision reported at 275 F.T.R. 232, allowed the motion and dismissed the action where it was an abuse of process. The plaintiff The Federal Court allowed the appeal and dismissed......
  • Neri v. Canada, 2021 FC 1443
    • Canada
    • Federal Court (Canada)
    • December 17, 2021
    ...Canada (Attorney General), 2021 FC 1061 [Fortin] at para 25, citing Jones v Canada, (1994) 87 FTR 190 at paras 9, 10 and Bernath v Canada, 2005 FC 1232 at para 35. Justice McDonald notes specifically that the grievance process contained in the NDA and QR&O is sufficiently broad to cover......
  • Request a trial to view additional results
12 cases
  • Moodie v. Canada (Minister of National Defence), 2008 FC 1233
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • September 22, 2008
    ... 2007 FCA 400 , refd to. [para. 31]. Manuge v. Canada (2008), 329 F.T.R. 167 ; 2008 FC 624 , refd to. [para. 31]. Bernath v. Canada (2005), 275 F.T.R. 232; 2005 FC 1232 (Protho.), revd. (2007), 321 F.T.R. 1 ; 2007 FC 104 , dist. [para. 34]. R. v. 974649 Ontario Inc. et al., [2001] 3 ......
  • Jones v. Canada (Attorney General), 2007 FC 386
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • April 13, 2007
    ...87 F.T.R. 190 (T.D.), refd to. [para. 38]. Pilon v. Canada (1996), 119 F.T.R. 269 (T.D.), refd to. [para. 38]. Bernath v. Canada (2005), 275 F.T.R. 232 (T.D. Protho.), affd. (2007), 375 N.R. 179 ; 2007 FCA 400 , refd to. [para. Lazar v. Canada (Attorney General) et al. (1999), 168 F.T......
  • Bernath v. Canada, 2007 FC 104
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • October 18, 2006
    ...the Crown argued that the cause of action as a whole was out of time. A Prothonotary of the Federal Court, in a decision reported at 275 F.T.R. 232, allowed the motion and dismissed the action where it was an abuse of process. The plaintiff The Federal Court allowed the appeal and dismissed......
  • Neri v. Canada, 2021 FC 1443
    • Canada
    • Federal Court (Canada)
    • December 17, 2021
    ...Canada (Attorney General), 2021 FC 1061 [Fortin] at para 25, citing Jones v Canada, (1994) 87 FTR 190 at paras 9, 10 and Bernath v Canada, 2005 FC 1232 at para 35. Justice McDonald notes specifically that the grievance process contained in the NDA and QR&O is sufficiently broad to cover......
  • Request a trial to view additional results

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