Duplessis v. Canada, (2000) 197 F.T.R. 87 (TD)

• Court: Federal Court (Canada)
• Case Date: June 29, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 197 F.T.R. 87 (TD)

Duplessis v. Can. (2000), 197 F.T.R. 87 (TD)

MLB headnote and full text

Temp. Cite: [2000] F.T.R. TBEd. DE.025

Peter Duplessis (plaintiff) v. Her Majesty the Queen (defendant)

(T-294-00)

Indexed As: Duplessis v. Canada

Federal Court of Canada

Trial Division

Aronovitch, Prothonotary

November 17, 2000.

Summary:

Sergeant Duplessis suffered from post-traumatic stress disorder. He sued the federal Crown for damages based on the treatment he received from the Canadian Armed Forces as a returning member of various peace keeping assignments. Duplessis alleged negligence, breach of statutory duties, breach of fiduciary duty, and breach of ss. 7 and 15 of the Charter. The Crown moved to strike the statement of claim pursuant to Federal Court Rule 221(1) on the grounds that: (1) Duplessis was receiving a pension in relation to post-traumatic stress disorder and, therefore, the action was precluded by virtue of s. 9 of the Crown Liability and Proceedings Act and s. 111 of the Pension Act; and (2) the facts pleaded could not support Duplessis' claim for a violation of s. 7 of the Charter or breach of fiduciary obligations.

A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the Crown's motion.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - General - Sergeant Duplessis suffered from post-traumatic stress disorder - He sued the federal Crown for damages based on the treatment he received from the Canadian Armed Forces as a returning member of various peace keeping assignments - Duplessis alleged, inter alia, a breach of s. 7 of the Charter (right to life, liberty and security of the person) - The Crown moved to strike the claim, arguing that s. 7 had been strictly interpreted as being applicable only in circumstances where the claimant's rights were infringed in the context of the administration of justice - A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the motion - The Prothonotary agreed that the jurisprudence had required that alleged restrictions on s. 7 rights must result from state action or interaction with the justice system - However, the jurisprudence on s. 7 was developing and there had been an incremental expansion of the rights protected under s. 7 - It was arguable that the action, or inaction, of the Armed Forces could be impugned as depriving Duplessis of his s. 7 rights - See paragraphs 33 to 49.

Civil Rights - Topic 8320.1

Canadian Charter of Rights and Freedoms - Application - Armed forces - [See Civil Rights - Topic 8304 ].

Civil Rights - Topic 8351

Canadian Charter of Rights and Freedoms - Application - Exceptions - Crown immunity or other bars to actions against Crown - Sergeant Duplessis suffered from post-traumatic stress disorder - He sued the federal Crown for damages based on the treatment he received from the Canadian Armed Forces as a returning member of various peace keeping assignments - Duplessis alleged negligence, breach of statutory duties, breach of fiduciary duty, and breach of ss. 7 and 15 of the Charter - The Crown moved to strike the claim on the ground that Duplessis was receiving a pension in relation to post-traumatic stress disorder and therefore, the action was precluded by virtue of s. 9 of the Crown Liability and Proceedings Act and s. 111 of the Pension Act - A Prothonotary of the Federal Court of Canada, Trial Division, held that it was not plain and obvious that the statutory bars invoked by the Crown would, of necessity, restrict access to a remedy for the Charter violations alleged by Duplessis - See paragraphs 59 to 63.

Crown - Topic 1643

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Receipt of compensation from consolidated revenue fund or Crown agency - [See Civil Rights - Topic 8351 and first Crown - Topic 1648 ].

Crown - Topic 1648

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Recovery of statutory disability or death pension - Sergeant Duplessis suffered from post-traumatic stress disorder - He sued the federal Crown for damages based on the treatment he received from the Canadian Armed Forces as a returning member of various peace keeping assignments - The Crown moved to strike the claim on the ground that Duplessis was receiving a pension in relation to post-traumatic stress disorder and therefore, the action was precluded by virtue of s. 9 of the Crown Liability and Proceedings Act and s. 111 of the Pension Act - A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the motion - Absent clearer evidence that the pension entitlement was intended to cover and did cover the injuries which formed the basis for this claim, and that those injuries were related to or indistinguishable from the aggravation of his syndrome, it was not plain and obvious that the plaintiff had already been awarded a pension in relation to the injuries claimed - See paragraphs 64 to 71.

Crown - Topic 1648

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Recovery of statutory disability or death pension - [See Civil Rights - Topic 8351 ].

Equity - Topic 3611

Fiduciary or confidential relationships - Crown - Sergeant Duplessis suffered from post-traumatic stress disorder - He sued the federal Crown for damages based on the treatment he received from the Canadian Armed Forces as a returning member of various peace keeping assignments - Duplessis alleged, inter alia, breach of fiduciary duty - The Crown moved to strike the claim on the ground that, inter alia, the facts pleaded could not support Duplessis' claim for breach of fiduciary obligations - A Prothonotary of the Federal Court of Canada, Trial Division, stated that "[g]iven the facts pleaded and continued prospects for the development of new fiduciary relationships, I cannot conclude that it is plain and obvious that Sergeant Duplessis' claim should fail. There is a serious question of law here that is more appropriately left for determination by the trial judge" - See paragraphs 24 to 31.

Practice - Topic 2208

Pleadings - Striking out pleadings - Application for - Evidentiary limitations - Sergeant Duplessis suffered from post-traumatic stress disorder - He sued the federal Crown for damages based on the treatment he received from the Canadian Armed Forces as a returning member of various peace keeping assignments - The Crown moved to strike the claim for want of a cause of action (Federal Court Rule 221(1)(a)), arguing that as Duplessis was receiving a pension in relation to post-traumatic stress disorder, the court had no jurisdiction as the action was precluded by virtue of s. 9 of the Crown Liability and Proceedings Act and s. 111 of the Pension Act - A Prothonotary of the Federal Court of Canada, Trial Division, permitted the Crown to introduce affidavit evidence consisting of decisions relating to Duplessis's pension - While Rule 221(2) prohibited affidavit evidence on a motion under rule 221(1)(a), rule 221(2) had been modified where the motion to strike was based on alleged lack of jurisdiction - See paragraphs 18 to 20.

Practice - Topic 2241

Pleadings - Striking out pleadings - Grounds - Lack of jurisdiction - [See Practice - Topic 2208 ].

Cases Noticed:

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 74 D.L.R.(4th) 321, refd to. [para. 14].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 13 C.R.R. 287; 18 D.L.R.(4th) 481; 12 Admin. L.R. 16, refd to. [para. 14].

Perera v. Canada, [1997] F.T.R. Uned. 79 (T.D.), refd to. [para. 15].

Operation Dismantle Inc. et al. v. Canada et al., [1983] 1 F.C. 745; 49 N.R. 363 (F.C.A.), refd to. [para. 15].

Vulcan Equipment Co. v. Coats Co., [1982] 2 F.C. 77; 39 N.R. 518 (F.C.A.), refd to. [para. 16].

Visx Inc. v. Nidek Co. et al. (1998), 234 N.R. 94; 82 C.P.R.(3d) 289 (F.C.A.), refd to. [para. 16].

Pfizer Canada Inc. et al. v. Apotex Inc. et al. (1999), 172 F.T.R. 81 (T.D.), refd to. [para. 17].

MIL Davie Inc. v. Société d'exploitation et de développement d'Hibernia ltée (1998), 226 N.R. 369 (F.C.A.), refd to. [para. 19].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 24].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57; 61 D.L.R.(4th) 14; 35 E.T.R. 1; 44 B.L.R. 1, refd to. [para. 26].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 26].

British Columbia Native Women's Society et al. v. Canada, [2000] 1 F.C. 304; [1999] F.T.R. Uned. 607 (T.D.), refd to. [para. 26].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205, refd to. [para. 36].

Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81; 84 D.L.R.(4th) 105, refd to. [para. 36].

Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161 (S.C.C.), refd to. [para. 36].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, consd. [para. 37].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25; 177 D.L.R.(4th) 124, consd. [para. 38].

Jane Doe v. Board of Police Commissioners of Metropolitan Toronto et al. (1990), 40 O.A.C. 16; 74 O.R.(2d) 225 (Div. Ct.), consd. [para. 43].

R. v. Généreux, [1992] 1 S.C.R. 259; 133 N.R. 241; 70 C.C.C.(3d) 1; 88 D.L.R.(4th) 110, refd to. [para. 47].

Arsenault et al. v. Canada et al. (1995), 104 F.T.R. 28 (T.D.), refd to. [para. 53].

O'Connor v. Canada (1995), 94 F.T.R. 93 (T.D.), refd to. [para. 53].

Dufour v. Textron Inc., [1993] O.J. No. 1738 (Gen. Div.), refd to. [para. 53].

Langille et al. v. Canada, [1992] 2 F.C. 208; 140 N.R. 304 (F.C.A.), refd to. [para. 54].

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41, refd to. [para. 54].

Prete v. Ontario et al. (1993), 68 O.A.C. 1; 110 D.L.R.(4th) 94 (C.A.), refd to. [para. 60].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609, refd to. [para. 60].

Budge v. Workers' Compensation Board (Alta.) (1991), 111 A.R. 228; 77 D.L.R.(4th) 361 (C.A.), consd. [para. 61].

Aussant v. Canada (2000), 188 F.T.R. 245 (T.D.), refd to. [para. 65].

McLean v. Canada (1999), 164 F.T.R. 208 (T.D.), refd to. [para. 65].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 35].

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, sect. 9 [para. 51].

Federal Court Rules 1998, rule 221(2) [para. 18].

Pension Act, R.S.C. 1985, c. P-6, sect. 111 [para. 50].

Counsel:

B.A. McIsaac, Q.C. and K. Klein, for the plaintiff;

Catherine Moore and M. Roach, for the defendant.

Solicitors of Record:

McCarthy Tétrault, Ottawa, Ontario, for the plaintiff;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant.

This motion was heard on June 29, 2000, at Ottawa, Ontario, before Aronovitch, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following decision on November 17, 2000.