MacLellan v. Canada (Attorney General) et al., (2014) 349 N.S.R.(2d) 52 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 08, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 349 N.S.R.(2d) 52 (SC);2014 NSSC 280

MacLellan v. Can. (A.G.) (2014), 349 N.S.R.(2d) 52 (SC);

    1101 A.P.R. 52

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. JL.071

John Cyril MacLellan (plaintiff/respondent) v. Attorney General of Canada Representing the Department of National Defence and Lieutenant Colonel David T. Lewis (defendants/moving parties)

John Cyril MacLellan (plaintiff/respondent) v. Her Majesty, Queen Elizabeth II, in the Right of the Dominion of Canada, Captain (N) Darren Garnier, Commander Garrett Reddy, Major Patrick Kavanagh, Major Prem Rawal (defendants/moving parties)

(Hfx. Nos. 355119; 392048; 2014 NSSC 280)

Indexed As: MacLellan v. Canada (Attorney General) et al.

Nova Scotia Supreme Court

LeBlanc, J.

July 17, 2014.

Summary:

In two related proceedings, the plaintiff alleged various types of wrongdoing by superior officers in the Canadian Forces (specifically, the Cadet Instructor Cadre), allegedly leading to the loss of his position as second-in-command at the Regional Gliding School (Atlantic) and, eventually, to his release. The defendants moved to dismiss the actions on the basis of summary judgment on the pleadings, declining jurisdiction due to the existence of alternative statutory mechanisms, or staying the proceedings pursuant to compensation legislation.

The Nova Scotia Supreme Court dismissed the two actions. The plaintiff's claims were in part subject to a statutory process of wide scope under the National Defence Act "to which the court must defer." Claims that involved matters arising under the Code of Service Discipline did not fall within the exception under s. 270 of the National Defence Act. Alternatively, those claims were not sufficiently pled, leading to being struck under Civil Procedure Rule 13. Finally, s. 92 of the Canadian Forces Members and Veterans Re-establishment and Compensation Act imposed a stay of the claims.

Armed Forces - Topic 2

General - Nature of employment - In two related actions, the plaintiff alleged various types of wrongdoing by superior officers in the Canadian Forces, allegedly leading to the loss of his position as second-in-command at the Regional Gliding School (Atlantic) and, eventually, to his release - He claimed that he was a contract employee of the Crown, and that he was constructively dismissed - He also claimed breach of contractual duties of good faith and fair dealing - The defendants moved to dismiss the actions - They submitted that the plaintiff was not, in fact, in a contractual relationship with the Crown, but rather was a commissioned officer serving at Her Majesty's pleasure - The Nova Scotia Supreme Court accepted the defendants' argument that the relationship between the plaintiff and the Crown was one of military service and not an employment contract - See paragraphs 58 and 59.

Armed Forces - Topic 7

General - Grievances - Civil action barred - In two related actions, the plaintiff alleged various types of wrongdoing by superior officers in the Canadian Forces (specifically, the Cadet Instructor Cadre), allegedly leading to the loss of his position as second-in-command at the Regional Gliding School (Atlantic) and, eventually, to his release - The defendants moved to dismiss the actions for want of jurisdiction over the claims, with a few exceptions - They argued that the claims dealing with promotion, pay, rank and harassment were grievable complaints under the exclusive jurisdiction of the scheme set out in s. 29 of the National Defence Act (NDA) and c. 7 of the Queen's Regulations and Orders for the Canadian Forces - The Nova Scotia Supreme Court declined jurisdiction in favour of the statutory grievance process - The essential character of the plaintiff's dispute, "no matter how it may be particularized in the pleadings, is one arising in the course of his military service and falling squarely within the ambit of s. 29 of the NDA. The events complained of occurred within the context of his military service and related directly to the exercise of his duties; his claims revolve around the exercise (or failure to exercise) by other personnel of their duties. ... While the NDA does not specifically oust the court's jurisdiction as a matter of law, there are strong policy reasons for the court to decline to exercise jurisdiction. ... [T]he legislative scheme shows a strong preference for proceeding under the statutory grievance process, and that the grievance process is capable of providing effective redress, if not the full extent that the plaintiff would prefer." - See paragraphs 30 to 57.

Armed Forces - Topic 7

General - Grievances - Civil action barred - In two related actions, the plaintiff alleged various types of wrongdoing by superior officers in the Canadian Forces - The statement of claim made general assertions of malice - A disciplinary charge and the plaintiff's Court Martial were aspects of the alleged campaign of abuse and malice - The plaintiff had been prosecuted for insubordination under the Code of Service Discipline - He was acquitted at the Court Martial - The defendants moved to dismiss the actions - They submitted that they had executed their duties under the Code, that the plaintiff had not pleaded particulars of malice, and that the defendants did not act "without reasonable and probable cause" - Accordingly, they argued, the claims arising from the service discipline matter were barred by s. 270 of the National Defence Act - The Nova Scotia Supreme Court concluded that the pleadings were not sufficient to bring the cause of action within the exception under s. 270 - The pleadings attributed malice to virtually all of the defendants' acts or omissions to which the plaintiff objected - That did not amount to the degree of specificity required for malice - The Court was even less convinced that the pleadings could support a finding of no reasonable and probable cause - It did not follow from the fact that the plaintiff was acquitted at the Court Martial that the proceeding was taken without reasonable and probable cause - See paragraphs 60 to 70.

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 - The pleadings alleged that as a result of the defendants' actions, the plaintiff "has and continues to suffer ... stress, humiliation, embarrassment and associated depression, sleeplessness and difficulty coping and same is not barred by the ... [Canadian Forces Members and Veterans Re-establishment and]Compensation Act ..." - He pleaded that he was put on medical leave before taking his release from the Armed Forces - In addition, he claimed for intentional infliction of emotional harm - The defendants sought a stay pursuant to s. 92 of the Compensation Act - The plaintiff was not receiving benefits under the Act, and there was no record that he applied for such benefits - The defendants sought a stay on the basis that the plaintiff claimed damages for psychological injuries, might be eligible for compensation, and had not applied - As such, both actions should be stayed, pending the plaintiff's exhaustion of the statutory process - The Nova Scotia Supreme Court issued the stay required by s. 92 - The plaintiff's claims would, at least in part, fall within the Compensation Act stay provisions - See paragraphs 112 to 120.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Practice - Topic 5719 ].

Practice - Topic 5359.1

Dismissal of action - Grounds - General and want of prosecution - Lack of jurisdiction - [See first Armed Forces - Topic 7 ].

Practice - Topic 5384

Dismissal of action - Application or motion for dismissal - Circumstances when granted - In two related proceedings, the plaintiff alleged various types of wrongdoing by superior officers in the Canadian Forces, allegedly leading to the loss of his position as second-in-command at the Regional Gliding School (Atlantic) and, eventually, to his release - The defendants moved to dismiss the actions - The Nova Scotia Supreme Court dismissed the two actions - "The plaintiff's claims were in part subject to a statutory process of wide scope under the National Defence Act to which the court must defer. Further aspects of the claims involve matters arising under the Code of Service Discipline, and I conclude that the claims do not fall within the exception under s. 270 of the National Defence Act. Alternatively, those claims are not sufficiently pleaded, leading to striking under Rule 13. Finally, s. 92 of the [Canadian Forces Members and Veterans Re-establishment and] Compensation Act imposes a stay of the claims." - See paragraph 122.

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - In two related actions, the plaintiff alleged various types of wrongdoing by superior officers in the Canadian Forces - As an alternative remedy, in the event that any or all of the claims in the actions survived dismissal on the grounds already argued, the defendants submitted that various causes of action should be struck under Nova Scotia's Civil Procedure Rule 13.03: summary judgment on the pleadings alone where a pleading "discloses no cause of action" (rule 13.03(a)); or where a pleading "otherwise makes a claim that is clearly unsustainable when the pleading is read on its own" (rule 13.03(b)) - The Nova Scotia Supreme Court struck the causes of action as unsustainable - See paragraphs 71 to 111.

Torts - Topic 6167

Abuse of legal procedure - Malicious prosecution - Practice - [See second Armed Forces - Topic 7 ].

Cases Noticed:

Dix v. Canada et al. (2001), 290 A.R. 281; 2001 ABQB 256, refd to. [para. 29].

Munro v. Canada (1992), 11 O.R.(3d) 1 (Gen. Div.), refd to. [para. 29].

St. Anne-Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; 68 N.R. 112; 73 N.B.R.(2d) 236; 184 A.P.R. 236, refd to. [para. 33].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 33].

New Brunswick v. O'Leary, [1995] 2 S.C.R. 967; 183 N.R. 229; 163 N.B.R.(2d) 97; 419 A.P.R. 97, refd to. [para. 33].

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64; 2005 SCC 11, refd to. [para. 33].

R. v. Conway (P.), [2010] 1 S.C.R. 765; 402 N.R. 255; 263 O.A.C. 61; 2010 SCC 22, refd to. [para. 34].

Pleau v. Canada (Attorney General) (1999), 181 N.S.R.(2d) 356; 560 A.P.R. 356 (C.A.), refd to. [para. 34].

Gillan v. Mount Saint Vincent University (2008), 266 N.S.R.(2d) 78; 851 A.P.R. 78; 2008 NSCA 55, refd to. [para. 34].

Jones v. Canada et al. (1994), 87 F.T.R. 190 (T.D.), refd to. [para. 37].

Moodie v. Canada (Minister of National Defence) (2008), 336 F.T.R. 269; 2008 FC 1233, affd. (2010), 399 N.R. 14; 2010 FCA 6, refd to. [para. 37].

Schmidt v. Canada (Attorney General) (2011), 386 F.T.R. 286; 2011 FC 356, refd to. [para. 37].

Zeidler v. Canada (Attorney General) (2011), 398 F.T.R. 130; 2011 FC 1154, refd to. [para. 37].

Sandiford v. Canada (2007), 309 F.T.R. 233; 2007 FC 225, consd. [para. 39].

Graham v. Canada, [2007] F.T.R. Uned. 829; 2007 FC 210, refd to. [para. 40].

Hamm v. Canada (2007), 318 F.T.R. 122; 2007 FC 597, affd. [2008] N.R. Uned. 47; 2008 FCA 139, refd to. [para. 40].

Van Duyvenbode v. Canada (Attorney General) et al., [2007] O.T.C. Uned. F04; 2007 CarswellOnt 4368 (Sup. Ct.), affd. [2009] O.A.C. Uned. 646; 2009 ONCA 11, refd to. [para. 45].

McBain v. Canada (Attorney General) (2011), 392 F.T.R. 80; 2011 FC 745, affd. (2012), 428 N.R. 385; 2012 FCA 23, refd to. [para. 48].

Korecki v. Nova Scotia (Minister of Justice) et al. (2013), 335 N.S.R.(2d) 122; 1060 A.P.R. 122; 2013 NSSC 312, refd to. [para. 49].

Lazar v. Canada (Attorney General) et al. (1999), 168 F.T.R. 11 (T.D.), affd. (2001), 271 N.R. 10; 2001 FCA 124, refd to. [para. 50].

Jones v. Canada (Attorney General) (2007), 333 F.T.R. 1; 2007 FC 386, refd to. [para. 50].

Air Canada and Pacific Western Airlines Ltd. v. British Columbia, [1989] 1 S.C.R. 1161; 95 N.R. 1, refd to. [para. 52].

Kaiser v. Multibond Inc. (2003), 219 N.S.R.(2d) 91; 692 A.P.R. 91; 2003 NSCA 122, refd to. [para. 54].

Kaiser v. Dural - see Kaiser v. Multibond Inc.

Gallant v. Canada (1978), 91 D.L.R.(3d) 695 (F.C.T.D.), refd to. [para. 58].

R. v. Généreux, [1992] 1 S.C.R. 259; 133 N.R. 241, refd to. [para. 62].

Symington v. Halifax (Regional Municipality) et al. (2011), 312 N.S.R.(2d) 152; 987 A.P.R. 152; 2011 NSSC 474, affd. (2013), 338 N.S.R.(2d) 321; 1071 A.P.R. 321; 2013 NSCA 152, refd to. [para. 64].

Wilson v. Toronto Police Service et al., [2001] O.T.C. 483 (Sup. Ct.), affd. (2002), 156 O.A.C. 374 (C.A.), refd to. [para. 64].

Kvello et al. v. Miazga et al., [2009] 3 S.C.R. 339; 395 N.R. 115; 337 Sask.R. 260; 464 W.A.C. 260; 2009 SCC 51, refd to. [para. 65].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 65].

Proulx v. Québec (Procureur général), [2001] 3 S.C.R. 9; 276 N.R. 201; 2001 SCC 66, refd to. [para. 66].

R. v. Tupper, 2007 CM 1028, refd to. [para. 68].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 72].

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

Baker (R.) Fisheries Ltd. et al. v. Widrig et al. (2002), 206 N.S.R.(2d) 183; 645 A.P.R. 183; 2002 NSCA 82, refd to. [para. 72].

Ofume v. Nova Scotia et al., [2004] N.S.R.(2d) Uned. 73; 2004 NSSC 132, refd to. [para. 72].

Canadian Imperial Bank of Commerce Mortgage Corp. v. Ofume - see Ofume v. Nova Scotia et al.

Coughlan et al. v. Westminer Canada Ltd. et al. (1994), 127 N.S.R.(2d) 241; 355 A.P.R. 241 (C.A.), refd to. [para. 77].

Amirault v. Westminer Canada Holdings Ltd. - see Coughlan et al. v. Westminer Canada Ltd. et al.

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 80].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260, refd to. [para. 82].

Romanic v. Johnson et al., [2012] O.T.C. Uned. 3449; 2012 ONSC 3449, affd. [2013] O.A.C. Uned. 15 (C.A.), refd to. [para. 82].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 89].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 90].

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, refd to. [para. 90].

Rumley et al. v. British Columbia, [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 2001 SCC 69, refd to. [para. 92].

Pearson v. Ontario (Attorney General), [2006] O.T.C. 317; 2006 CarswellOnt 1895 (Sup. Ct.), affd. [2007] O.A.C. Uned. 74; 2007 CarswellOnt 1469 (C.A.), leave to appeal denied (2007), 375 N.R. 400; 245 O.A.C. 396 (S.C.C.), refd to. [para. 93].

MacPhee et al. v. Pulpwood Marketing Board (N.S.) et al. (1989), 88 N.S.R.(2d) 345; 225 A.P.R. 345; 1989 CarswellNS 109 (C.A.), refd to. [para. 94].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 94].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 96].

Central Canada Potash Co. and Canada (Attorney General) v. Saskatchewan, [1979] 1 S.C.R. 42; 23 N.R. 481, refd to. [para. 97].

Prinzo v. Baycrest Centre for Geriatric Care (2002), 161 O.A.C. 302; 60 O.R.(3d) 474 (C.A.), refd to. [para. 99].

Elder Advocates of Alberta Society et al. v. Alberta et al. (2011), 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 103].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 105].

Robertson v. McCormick (2012), 311 N.S.R.(2d) 329; 985 A.P.R. 329; 2012 NSSC 4, refd to. [para. 106].

Body Shop Canada Ltd. v. Carson (Dawn) Enterprises Ltd. et al. (2010), 289 N.S.R.(2d) 104; 916 A.P.R. 104; 2010 NSSC 25, refd to. [para. 111].

Cooper et al. v. Hennan et al. (2005), 393 A.R. 146; 2005 ABQB 709, refd to. [para. 111].

Dumont v. Canada (2002), 221 F.T.R. 101; 2002 FCT 641, varied in part (2003), 323 N.R. 316; 2003 FCA 475, refd to. [para. 116].

Statutes Noticed:

Canadian Forces Members and Veterans Re-establishment and Compensation Act, S.C. 2005, c. 21, sect. 92 [para. 112].

National Defence Act, R.S.C. 1985, c. N-5, sect. 29 [para. 35]; sect. 270 [para. 61].

Queen's Regulations and Orders for the Canadian Forces, c. 7.01(2) [para. 36].

Rules of Court (N.S.), rule 4.07 [para. 30]; rule 13.03 [para. 71]; rule 38.03(3) [para. 64].

Authors and Works Noticed:

Clerk, John F., and Lindsell, The Law of Torts (14th Ed. 1975), p. 414, para. 802 [para. 97].

Klar, Lewis N., Remedies in Tort, vol. 1, paras. 7:7, 7:8 [para. 84].

Linden, Allen M., and Feldthusen, Bruce, Halsbury's Laws of Canada: Torts, § HTO-21 [para. 101].

Counsel:

M. Kathleen McManus and Susan R. Taylor, for the defendants/moving parties;

Kevin A. MacDonald, for the plaintiff/respondent.

This motion to dismiss was heard on December 3, 10 and 11, 2013, and on January 8, 2014, in Halifax, Nova Scotia, before LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following judgment, dated July 17, 2014.