Brauer v. Canada (Attorney General),

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Mosley, J.
• Citation: (2014), 455 F.T.R. 171 (FC),2014 FC 488
• Court: Federal Court (Canada)
• Date: 15 April 2014

Brauer v. Can. (A.G.) (2014), 455 F.T.R. 171 (FC)

MLB headnote and full text

[French language version follows English language version]

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

.........................

Temp. Cite: [2014] F.T.R. TBEd. JN.007

Marcus Brauer (applicant) v. Attorney General of Canada (respondent)

(T-1028-13; 2014 FC 488; 2014 CF 488)

Indexed As: Brauer v. Canada (Attorney General)

Federal Court

Mosley, J.

May 23, 2014.

Summary:

In 2010, a member of the Canadian Forces (Brauer) was transferred from Edmonton to Halifax. The transfer resulted in an $88,000 loss on the sale of his home in the Town of Bon Accord, located 40 km outside of Edmonton. The loss was partially offset by a payment of $15,000 under the Canadian Forces Integrated Relocation Program Directive. Brauer grieved, asserting that the full amount of the loss should have been covered under the Directive because in 2010 Bon Accord was a "depressed market area" as specified in the Directive. The grievance procedure resulted in a decision by the Treasury Board Secretariat (TBS) which declined to designate Bon Accord as a depressed market for 2010 as the decline in the average home costs in the Bon Accord/Edmonton area was below the 20% threshold. Brauer applied for judicial review.

The Federal Court allowed the application, quashed the TBS's decision and remitted the matter for reconsideration with the direction that Bon Accord, not Edmonton, be considered the community for determination of whether it was a depressed market in 2010. The court granted Brauer costs on a full indemnity basis.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - The Treasury Board Secretariat (TBS) declined to designate the Town of Bon Accord as a "depressed market area" in 2010 under the Canadian Forces Integrated Relocation Program Directive - On judicial review, the Federal Court refused to consider documents included in the applicant's supporting affidavit that were not before the TBS or post-dated the decision except to the extent that they provided general background information that assisted the court - See paragraphs 33 to 36.

Administrative law - Topic 3345.1

Judicial review - General - Practice - Evidence - New evidence - [See Administrative Law - Topic 3345].

Armed Forces - Topic 7048

Military personnel - Employment and enrolment - Relocation leave or benefits - In 2010, a member of the Canadian Forces (Brauer) was transferred from Edmonton to Halifax - The transfer resulted in an $88,000 loss on the sale of his home in the Town of Bon Accord - The loss was partially offset by a payment of $15,000 pursuant to the Canadian Forces Integrated Relocation Program Directive - Brauer grieved, asserting that the full loss should have been covered because Bon Accord was a "depressed market area" as specified in the Directive - The Treasury Board Secretariat (TBS) declined to designate Bon Accord as a depressed market - The Federal Court allowed Brauer's judicial review application - The Directive defined a "depressed market area" as "a community where the housing market had dropped more than 20%" - The TBS interpreted "community" as "area" and treated Bon Accord as part of the Greater Edmonton Area - That interpretation was unreasonable - The TBS had already determined that Edmonton was not a depressed housing market - The impugned decision extended that conclusion to Bon Accord without drawing a distinction between the two communities - The court remitted the matter for reconsideration with the direction that Bon Accord, not Edmonton, be considered the community for determination of whether there was a depressed market in 2010 - Given the matter's history and the length of time that Brauer had been attempting to obtain a remedy, the court awarded him costs on a full indemnity basis - See paragraphs 37 to 69.

Armed Forces - Topic 8562

Grievances - Judicial review - Standard of review - In 2010, a member of the Canadian Forces (Brauer) was transferred from Edmonton to Halifax - The transfer resulted in an $88,000 loss on the sale of his home in the Town of Bon Accord - The loss was partially offset by a payment of $15,000 under the Canadian Forces Integrated Relocation Program Directive - Brauer grieved, asserting that the full amount of the loss should have been covered under the Directive because Bon Accord was a "depressed market area" as specified in the Directive - The Treasury Board Secretariat declined to designate Bon Accord as a depressed market - Brauer applied for judicial review - The Federal Court concluded that the decision was reviewable on the standard of reasonableness - See paragraphs 23 to 32.

Practice - Topic 7803

Costs - Solicitor and his own client costs - Entitlement to - General - [See Armed Forces - Topic 7048].

Words and Phrases

Community - The Federal Court considered the meaning of this word as used in the Canadian Forces Integrated Relocation Program Directive - See paragraphs 37 to 69.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 24].

Khalid v. National Research Council of Canada, [2013] F.T.R. Uned. 201; 2013 FC 438, refd to. [para. 26].

Attorney General of Canada v. Bearss, [2010] F.T.R. Uned. 175; 2010 FC 299, refd to. [para. 26].

Backx v. Canadian Food Inspection Agency et al. (2013), 427 F.T.R. 148; 2013 FC 139, refd to. [para. 26].

Assh v. Canada (Attorney General) (2006), 356 N.R. 263; 2006 FCA 358, refd to. [para. 28].

Appleby-Ostroff v. Canada (Attorney General), [2010] F.T.R. Uned. 899; 2010 FC 479, affd. (2011), 417 N.R. 250; 2011 FCA 84, refd to. [para. 28].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 32].

McLean v. British Columbia Securities Commission (2013), 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 32].

Ochapowace First Nation et al. v. Canada (Attorney General) et al. (2007), 316 F.T.R. 19; 2007 FC 920, affd. (2009), 389 N.R. 87; 2009 FCA 124, leave to appeal denied (2009), 402 N.R. 391 (S.C.C.), refd to. [para. 33].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 63].

Counsel:

Daniel F. Wallace, for the applicant;

Susan L. Inglis, for the respondent.

Solicitors of Record:

McInnes Cooper, Halifax, Nova Scotia, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Halifax, Nova Scotia, for the respondent.

This application was heard at Halifax, Nova Scotia, on April 15, 2014, by Mosley, J., of the Federal Court, who delivered the following reasons for judgment on May 23, 2014.