Moodie v. Canada (Minister of National Defence), 2008 FC 1233

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: September 22, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2008 FC 1233;(2008), 336 F.T.R. 269 (FC)

Moodie v. Can. (2008), 336 F.T.R. 269 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. NO.019

Anthony Moodie (plaintiff) v. Her Majesty The Queen in Right of Canada As Represented by The Minister of National Defence (defendant)

(T-1248-07; 2008 FC 1233)

Indexed As: Moodie v. Canada (Minister of National Defence)

Federal Court

Mosley, J.

November 6, 2008.

Summary:

Moodie was a member of the Canadian Armed Forces (CAF) from 1995 to 2005. Moodie brought an action, seeking a declaration that he was wrongfully released from the CAF and an order restoring him to office. He also claimed damages of $4.3 million for breach of his right to security of the person as guaranteed by s. 7 of the Charter, breach of equality rights under s. 15 of the Charter, loss of reputation and defamation, intentional infliction of mental anguish, negligence and breach of fiduciary duty. The Minister of National Defence moved to strike Moodie's statement of claim.

A Prothonotary of the Federal Court, in a decision not reported in this series of reports, allowed the motion and struck the statement of claim on the grounds that the National Defence Act and the Queen's Regulations and Orders for the Canadian Forces established an exclusive statutory scheme for the resolution of service-related disputes between members of the CAF and Canada. Moodie applied for an extension of time to bring a motion to appeal.

The Federal Court, in a decision reported at [2008] F.T.R. Uned. 979, allowed the application.

The Federal Court dismissed the motion to appeal.

Armed Forces - Topic 7

General - Grievances - Civil action barred - Moodie was a member of the Canadian Armed Forces (CAF) from 1995 to 2005 - He brought an action, seeking a declaration that he was wrongfully released from the CAF and an order restoring him to office - He also claimed damages of $4.3 million for breach of his right to security of the person as guaranteed by s. 7 of the Charter, breach of equality rights under s. 15 of the Charter, loss of reputation and defamation, intentional infliction of mental anguish, negligence and breach of fiduciary duty - A Prothonotary struck the statement of claim on the grounds that the National Defence Act and the Queen's Regulations and Orders for the Canadian Forces established an exclusive statutory scheme for the resolution of service-related disputes between members of the CAF and Canada - Moodie moved to appeal, asserting that he tried to use the statutory scheme for grievances and the Minister of National Defence had obstructed and frustrated his attempts to access those procedures - The Federal Court dismissed the motion - The Minister's unchallenged evidence was that Moodie's grievances were being processed under the statutory scheme and that his access to the scheme was not being blocked - The grievance procedure created under the National Defence Act constituted an adequate alternative remedy that had to be exhausted before an individual could turn to the courts for redress - This action was a disguised grievance and discrimination complaint and Moodie had failed to exhaust the remedies that were available to him under the statutory grievance procedure - It was plain and obvious and beyond reasonable doubt that this action was premature pending the completion of those proceedings and had no chance of success.

Armed Forces - Topic 8401

Grievances - General - [See Armed Forces - Topic 7 ].

Courts - Topic 4032

Federal Court of Canada - Jurisdiction - Federal Court - Military matters - [See Armed Forces - Topic 7 ].

Courts - Topic 4052

Federal Court of Canada - Jurisdiction - Federal Court - Requirement of lack of other remedy - [See Armed Forces - Topic 7 ].

Cases Noticed:

Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399 (F.C.A.), refd to. [para. 4].

Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425; 149 N.R. 273 (F.C.A.), refd to. [para. 12].

Merck & Co. et al. v. Apotex Inc., [2004] 2 F.C.R. 459; 315 N.R. 175; 2003 FCA 488, refd to. [para. 12].

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. 20].

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

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 18 D.L.R.(4th) 481, refd to. [para. 21].

Erasmus et al. v. Minister of National Revenue, [1992] 2 F.C. 681; [1992] 2 C.T.C. 21; 145 N.R. 321 (F.C.A.), refd to. [para. 23].

Cameron v. Ciné St-Henri Inc., [1984] 1 F.C. 421; 2 C.P.R.(3d) 491 (T.D.), refd to. [para. 23].

Jones v. Canada et al. (1994), 87 F.T.R. 190; 51 A.C.W.S.(3d) 1271 (T.D.), refd to. [para. 27].

Sandiford v. Canada (2007), 309 F.T.R. 233; 2007 FC 225, refd to. [para. 28].

Gallant v. Canada (1978), 91 D.L.R.(3d) 695 (F.C.T.D.), refd to. [para. 28].

Pilon v. Canada (1996), 119 F.T.R. 269; 23 C.C.E.L.(2d) 267 (T.D.), refd to. [para. 28].

Villeneuve v. Canada et al. (1997), 130 F.T.R. 134; 71 A.C.W.S.(3d) 669 (T.D.), refd to. [para. 28].

Haswell v. Canada (Attorney General) (1998), 56 O.T.C. 143; 77 A.C.W.S.(3d) 541 (Gen. Div.), affd. (1998), 116 O.A.C. 395 (C.A.), refd to. [para. 28].

Anderson v. Canada (Minister of National Defence) et al., [1997] 1 F.C. 273; 205 N.R. 350; 141 D.L.R.(4th) 54 (F.C.A.), refd to. [para. 28].

Chisholm v. Canada (Attorney General) (2003), 231 F.T.R. 155; 2003 FCT 387, refd to. [para. 28].

Bernath v. Canada (2007), 375 N.R. 179; 290 D.L.R.(4th) 357; 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 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 36].

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64, refd to. [para. 36].

Prentice v. Royal Canadian Mounted Police, [2006] 3 F.C.R. 135; 346 N.R. 201; 2005 FCA 395, refd to. [para. 39].

Abbott Laboratories et al. v. Canada (Minister of Health) et al., [2006] 4 F.C.R. 41; 286 F.T.R. 281; 2006 FC 120, refd to. [para. 43].

Alfred v. Canada (Minister of Citizenship and Immigration) (2005), 279 F.T.R. 7; 2005 FC 1134, refd to. [para. 43].

Counsel:

Charles Roach, for the plaintiff;

Michelle Ratpan and Jacqueline Dais-Visca, for the defendant.

Solicitors of Record:

Roach Schwartz & Associates, Toronto, Ontario, for the plaintiff;

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

This motion was heard on September 22, 2008, at Toronto, Ontario, by Mosley, J., of the Federal Court, who delivered the following judgment on November 6, 2008.