Hamm v. Canada, (2007) 318 F.T.R. 122 (FC)

• Judge: Blais, J.
• Court: Federal Court (Canada)
• Case Date: June 06, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 318 F.T.R. 122 (FC);2007 FC 597

Hamm v. Can. (2007), 318 F.T.R. 122 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. JN.025

Timothy C. Hamm (plaintiff) v. Her Majesty the Queen (defendant)

(T-1015-05; 2007 FC 597)

Indexed As: Hamm v. Canada

Federal Court

Blais, J.

June 6, 2007.

Summary:

Hamm was enrolled as a member of the Military Police branch of the Canadian Forces from 1990 until his official release on May 18, 2005. On December 12, 2000, while he was on medical leave for stress related reasons, his immediate superior advised him by phone to begin preparation for deployment and that if he failed to comply he would be jailed. Shortly thereafter two of Hamm's Military Police colleagues arrested Hamm when he refused to report for administrative or disciplinary actions. In addition to complaints referred to the Military Police Complaints Commission and the Military Police Credentials Review Board, Hamm filed five grievances under s. 29 of the National Defence Act. The first four grievances flowed directly from the December 2000 incident. The fifth grievance related to the abandonment of a promotion. On June 10, 2005, Hamm sued the federal government, seeking damages for, inter alia, negligence by its employees, servants and agents in their exercise of powers of arrest and detention (Crown Liability and Proceedings Act, s. 3); various Charter breaches; and general, punitive and exemplary damages including, but not limited to damages under s. 24(1) of the Charter. The fourth was stayed pending determination of the action. Both parties applied for summary judgment. Alternatively, each party sought to have portions of the other party's pleadings struck out.

The Federal Court granted the federal government summary judgment and dismissed the action. The court dismissed Hamm's motion.

Administrative Law - Topic 4562

Judicial review - Declaratory action - Bars - Existence of alternate remedy - Hamm, a former member of the Military Police branch of the Canadian Forces, sued the federal government seeking damages for, inter alia, negligence by its employees, servants and agents in their exercise of powers of arrest and detention (Crown Liability and Proceedings Act, s. 3); various Charter breaches; and general, punitive and exemplary damages including, but not limited to damages under s. 24(1) of the Charter - The claims arose out of Hamm's arrest by Military Police colleagues while he was on medical leave for stress related reasons - The government asserted that the court lacked jurisdiction to adjudicate on disputes relating to rank or service of members of the Canadian Forces - Further, Hamm's claims arose out of a workplace dispute or internal military dispute and were to be dealt with by the comprehensive redress schemes available to members of the Canadian Forces - The Federal Court refused to decline jurisdiction on this basis where it appeared that the redress schemes might not be sufficient to address all of Hamm's claims, particularly, his claim for relief under s. 24(1) of the Charter - See paragraphs 28 to 40.

Administrative Law - Topic 4562

Judicial review - Declaratory action - Bars - Existence of alternate remedy - Hamm, a former member of the Military Police branch of the Canadian Forces, sued the federal government seeking damages for, inter alia, negligence by its employees, servants and agents in their exercise of powers of arrest and detention (Crown Liability and Proceedings Act, s. 3) - Hamm sought compensation for the damage to his career opportunities and for the adverse effects on his mental health - The claims arose out of Hamm's arrest by Military Police colleagues while he was on medical leave for stress related reasons - The government asserted that Hamm was already compensated for the damages to his mental health by way of a pension for post traumatic stress disorder arising as a result of his military duties as a police officer, including the same events upon which he relied to support the negligence claim - Further, s. 9 of the Act prohibited recovering twice for the same wrong - The Federal Court agreed - The s. 3 claim based on mental health was barred by s. 9 - As for damage to Hamm's career, the proper forum was through the grievance process under s. 29 of the National Defence Act, a process which Hamm had already initiated, but which was suspended pending the resolution of his civil claim - If the plaintiff was successful with the grievance, any damage suffered respecting his career advancement would be effectively remedied and would no longer support a negligence claim - Should he be dissatisfied with the result of that process, he could seek judicial review - See paragraphs 41 to 52.

Armed Forces - Topic 7

General - Grievances - Civil action barred - [See both Administrative Law - Topic 4562 ].

Armed Forces - Topic 10

General - Application of limitation period - On June 10, 2005, Hamm, a former member of the Military Police branch of the Canadian Forces, sued the federal government seeking damages for, inter alia, various Charter breaches and for general, punitive and exemplary damages including, but not limited to damages under s. 24(1) of the Charter - The claims arose out of Hamm's arrest on December 12, 2000, by Military Police colleagues - The government asserted that the Charter claims were barred by the six month limitation period under s. 269 of the National Defence Act - Hamm asserted that there has been a continuance of injury or damage such that the limitation period ran only from the date of the discovery of the last known continuance of injury or harm in January 2005 (i.e., discovery of a lost promotion) which fell within the limitation period - Hamm asserted that an April 15, 2002 decision to suspend his Military Police credentials and a November 27, 2002 decision to place in abeyance his promotion pending resolution of the suspension of his Military Police credentials were each a continuance of injury or damage within the meaning of s. 269 - The Federal Court held that the Charter claims were barred by s. 269 - The alleged violations related directly to the December 12, 2000 arrest and detention - While there was a link between the events relied on by Hamm, it was not so strong that the discovery of the lost promotion could anchor the Charter claims for injury or damages resulting from the December 2000 arrest - Moreover, it was difficult to allow the lost promotion to be the continuance of injury that anchored the claim where the proper forum for a remedy for the lost promotion was the internal grievance process - See paragraphs 53 to 64.

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 second Administrative Law - Topic 4562 ].

Limitation of Actions - Topic 15

General principles - Discoverabilty rule - Application of - [See Armed Forces - Topic 10 ].

Limitation of Actions - Topic 7528

Actions against the Crown - When limitation period commences - Continuing injury or damage - [See Armed Forces - Topic 10 ].

Limitation of Actions - Topic 7582

Actions against the Crown - Applicability of limitation period - Charter remedies - [See Armed Forces - Topic 10 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Armed Forces - Topic 10 ].

Cases Noticed:

Granville Shipping Co. v. Pegasus Lines Ltd. S.A. et al., [1996] 2 F.C. 853; 111 F.T.R. 189 (T.D.), refd to. [para. 25].

Paszkowski v. Canada (Attorney General) et al. (2006), 287 F.T.R. 116; 2006 FC 198, refd to. [para. 26].

Sokolowska v. Minister of National Revenue (2005), 331 N.R. 176; 2005 FCA 29, refd to. [para. 29].

Gallant v. Canada (1978), 91 D.L.R.(3d) 695 (F.C.T.D.), refd to. [para. 30].

Olmstead v. Canada (1990), 34 F.T.R. 89 (T.D.), refd to. [para. 30].

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64, refd to. [para. 32].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345, refd to. [para. 39].

Bernath v. Canada (2007), 321 F.T.R. 1; 2007 FC 104, appld. [para. 39].

Sarvanis v. Canada, [2002] 1 S.C.R. 921; 284 N.R. 263, refd to. [para. 43].

Begg et al. v. Canada (Minister of Agriculture) (2004), 252 F.T.R. 66; 2004 FC 659, refd to. [para. 44].

Sandiford v. Canada (2007), 309 F.T.R. 233; 2007 FC 225, refd to. [para. 47].

Kingstreet Investments Ltd. et al. v. New Brunswick (Minister of Finance) et al. (2007), 355 N.R. 336; 309 N.B.R.(2d) 255; 799 A.P.R. 255; 2007 SCC 1, refd to. [para. 55].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 59].

Smith v. Baltzer et al. (2001), 247 N.B.R.(2d) 78; 641 A.P.R. 78 (T.D.), refd to. [para. 60].

Prophet River Indian Band v. Canada, [2001] F.T.R. Uned. 517; 2001 FCT 820, refd to. [para. 67].

Dene Tsaa First Nation v. Canada - see Prophet River Indian Band v. Canada.

Counsel:

Laura C. Snowball, for the plaintiff;

R. Jeff Anderson, for the defendant.

Solicitors of Record:

Burnet, Duckworth & Palmer LLP, Calgary, Alberta, for the plaintiff.

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

This action was heard at Ottawa, Ontario, on May 8 and 9, 2007, by Blais, J., of the Federal Court, who delivered the following reasons for order on June 6, 2007.