Morneault v. Canada (Attorney General), (1998) 150 F.T.R. 28 (TD)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Reed, J.
• Citation: (1998), 150 F.T.R. 28 (TD)
• Date: 27 April 1998

Morneault v. Can. (A.G.) (1998), 150 F.T.R. 28 (TD)

MLB headnote and full text

Temp. Cite: [1998] F.T.R. TBEd. MY.024

Lieutenant-Colonel Paul R. Morneault (applicant) v. The Attorney General of Canada (respondent)

(T-1645-97)

Indexed As: Morneault v. Canada (Attorney General)

Federal Court of Canada

Trial Division

Reed, J.

April 27, 1998.

Summary:

In March of 1995, the Governor-in-Council established the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (the Commission). The Commission's mandate required it "to inquire into and report on" six matters and nineteen specific issues with respect to the Canadian Forces deployment to Somalia. The Commission divided the inquiry into three phases: Pre-Deployment, In-Theatre and Post-Deployment. The inquiry was terminated when the Commission was part way through its investigation into the second stage. Subsequently, the Commission released a five volume Report entitled "Dishonoured Legacy". The first three volumes identified systemic or institutional faults in the pre-deployment stage. The fourth volume singled out eleven senior officers and made findings of misconduct against them. One of the officers (Morneault) applied for an order quashing the Commission's findings as contained in the Report.

The Federal Court of Canada, Trial Division, granted the application and issued a declaration that the Commission's findings of individual misconduct against Morneault were invalid. The court also granted a declaration that the Report's two general statements of condemnation did not apply to him.

Administrative Law - Topic 7912

Public inquiries - General - Procedural fairness - A Commission of Inquiry was established to look into the Deployment of Canadian Forces to Somalia - The inquiry was terminated when the Commission was part way through the second of three stages - The Commission's Report identified systemic or institutional faults in the pre-deployment stage - Morneault, who had commanded the Airborne Regiment for four months prior to its deployment to Somalia, applied for an order quashing the Commission's findings on the ground that, inter alia, he was not given reasonable notice of the Commission's findings - The Crown submitted that notice was not required because the general findings were not statements of misconduct but were merely part of the general narrative - The Federal Court of Canada, Trial Division, held that Morneault should have been given notice of the general statements of condemnation - See paragraphs 25 to 29.

Administrative Law - Topic 7912

Public inquiries - General - Procedural fairness - A Commission of Inquiry was established to look into the Deployment of Canadian Forces to Somalia - In its Report, the Commission held that Morneault, who had commanded the Airborne Regiment for four months prior to its deployment to Somalia, had failed to adequately organize, direct and supervise the training preparations for the peacekeeping operation in Somalia; and that he had failed in his duty as commanding officer as defined in Queen's Regulations and Orders, s. 4.20, and in military custom - Morneault applied for an order quashing the Commission's findings on the ground that, inter alia, he was not given specific notice of the factors which justified the finding of misconduct - The Federal Court of Canada, Trial Division, held that the Commission failed to give Morneault reasonable notice - See paragraphs 30 to 47.

Administrative Law - Topic 7981

Public inquiries - Judicial review - General - A Commission of Inquiry was established to look into the Deployment of Canadian Forces to Somalia - The inquiry was terminated when the Commission was part way through the second of three stages - The Commission's Report identified systemic or institutional faults in the pre-deployment stage - The Report also singled out eleven senior officers (including Morneault) and made findings of misconduct against them - Morneault, who had commanded the Airborne Regiment for four months prior to its deployment to Somalia, applied for an order quashing the Commission's findings on the ground that, inter alia, he was not given reasonable notice of the Commission's findings and an opportunity to respond - The Federal Court of Canada, Trial Division, issued a declaration that the Report's general statements of condemnation did not refer to Morneault and that the findings of individual misconduct against Morneault were invalid - See paragraphs 60 to 114.

Administrative Law - Topic 7983

Public inquiries - Judicial review - Inquiries subject to supervision - A Commission of Inquiry was established to look into the Deployment of Canadian Forces to Somalia - The Commission's Report identified systemic or institutional faults in the pre-deployment stage - The Report also singled out eleven senior officers (including Morneault) and made findings of misconduct against them - Morneault applied for an order quashing the Commission's findings on the ground that, inter alia, the findings were not supported by the evidence - The Crown submitted that, inter alia, the Commission's findings were not decisions reviewable under s. 18.1(4)(d) of the Federal Court Act because there were no legal consequences to the findings that were made - The Federal Court of Canada, Trial Division, ruled that the findings were reviewable - See paragraphs 48 to 53.

Administrative Law - Topic 7985

Public inquiries - Judicial review - Scope of review - A Commission of Inquiry was established to look into the Deployment of Canadian Forces to Somalia - The Commission's Report identified systemic or institutional faults in the pre-deployment stage - The Report also singled out eleven senior officers (including Morneault) and made findings of misconduct against them - Morneault applied for an order quashing the Commission's findings on the ground that, inter alia, the findings were not supported by the evidence - The Crown submitted that, inter alia, the applicable test was the "no evidence" rule - Under that rule, a court should only interfere when there was a complete absence of evidence to support a decision - The Federal Court of Canada, Trial Division, ruled that "patently unreasonable" was the appropriate test - See paragraphs 54 to 59 and 62.

Cases Noticed:

Addy v. Létourneau, J., et al., [1997] 3 F.C. 784; 133 F.T.R. 81 (T.D.), consd. [para. 10].

Richards v. Miller, J. (1996), 180 N.B.R.(2d) 1; 458 A.P.R. 1 (T.D.), refd to. [para. 26].

Canada (Attorney General) et al. v. Royal Commission of Inquiry on the Blood System in Canada et al., [1996] 3 F.C. 259; 115 F.T.R. 81 (T.D.), affd. [1997] 2 F.C. 36; 207 N.R. 1 (F.C.A.), affd. [1997] 3 S.C.R. 440; 216 N.R. 321, consd. [para. 27].

Landreville v. R., [1973] F.C. 1223 (T.D.), refd to. [para. 50, footnote 3].

Schutz v. Ontario (Municipal Board) (1978), 20 O.R.(2d) 104 (Div. Ct.), refd to. [para. 50, footnote 3].

Beno v. Létourneau et al., [1997] 2 F.C. 527; 212 N.R. 357 (F.C.A.), refd to. [para. 50, footnote 3].

Dixon v. Commission of Inquiry into the Deployment of Canadian Forces to Somalia et al. (1997), 218 N.R. 139; 149 D.L.R.(4th) 269 (F.C.A.), leave to appeal dismissed, [1997] S.C.C.A. No. 505 (S.C.C.), refd to. [para. 50, footnote 3].

Guay v. Lafleur, [1965] S.C.R. 12, consd. [para. 50].

Saulnier v. Commission de Police du Québec et Communauté Urbaine de Montréal et autres, [1976] 1 S.C.R. 572; 6 N.R. 541, refd to. [para. 50].

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1; 124 D.L.R.(4th) 129; 98 C.C.C.(3d) 20; 28 C.R.R.(2d) 1, consd. [para. 53].

Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

United Steelworkers of America, Local 9332 v. Richard, J. - see Phillips et al. v. Richard, J.

Sarco Canada Ltd. v. Anti-Dumping Tribunal, [1979] 1 F.C. 247; 22 N.R. 225 (F.C.A.), refd to. [para. 55].

Rohm & Haas Canada Ltd. v. Anti-Dumping Tribunal (1978), 22 N.R. 175; 91 D.L.R.(3d) 212 (F.C.A.), refd to. [para. 55].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 55].

Dickason and Human Rights Commission (Alta.) v. University of Alberta, [1992] 2 S.C.R. 1103; 141 N.R. 1; 127 A.R. 241; 20 W.A.C. 241; 95 D.L.R.(4th) 439, refd to. [para. 55].

Singh and Narang v. Minister of Employment and Immigration (1993), 69 F.T.R. 142 (T.D.), refd to. [para. 56].

Hristova et al. v. Minister of Employment and Immigration (1994), 75 F.T.R. 18 (T.D.), refd to. [para. 56].

Canadian Imperial Bank of Commerce v. Rifou, [1986] 3 F.C. 486; 72 N.R. 12 (F.C.A.), refd to. [para. 56].

Frimpong v. Minister of Employment and Immigration (1989), 99 N.R. 164; 8 Imm. L.R.(2d) 183 (F.C.A.), refd to. [para. 56].

Boucher v. Commission d'appel de l'Immigration du Canada (1989), 105 N.R. 66 (F.C.A.), refd to. [para. 56].

Giron v. Minister of Employment and Immigration (1992), 143 N.R. 238 (F.C.A.), refd to. [para. 56].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 97 D.L.R.(3d) 417; 79 C.L.L.C. 14,209, refd to. [para. 57, footnote 4].

Zurich Insurance Co. v. Human Rights Commission (Ont.), [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81; 93 D.L.R.(4th) 346, refd to. [para. 57, footnote 4].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1; 100 D.L.R.(4th) 658; 13 Admin. L.R.(2d) 1, refd to. [para. 57, footnote 4].

Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161; 101 D.L.R.(4th) 673; 93 C.L.L.C. 14,022, refd to. [para. 57, footnote 4].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; [1994] 7 W.W.R. 1; 92 B.C.L.R.(2d) 145; 14 B.C.R.(2d) 217; 22 Admin. L.R.(2d) 1; 114 D.L.R.(4th) 385, refd to. [para. 57, footnote 4].

Superintendent of Brokers - see Pezim v. British Columbia Securities Commission et al.

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 57, footnote 4].

Canadian Pasta Manufacturers' Association v. Aurora Importing & Distributing Ltd. et al. (1997), 208 N.R. 329 (F.C.A.), refd to. [para. 59].

Beno v. Létourneau et al., [1997] 1 F.C. 911; 126 F.T.R. 241 (T.D.), affd. [1997] 2 F.C. 527; 212 N.R. 357 (F.C.A.), leave to appeal dismissed, [1997] S.C.C.A. No. 322 (S.C.C.), refd to. [para. 66].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 18.1(4)(b), sect. 18.1(4)(d) [para. 4].

Inquiries Act, R.S.C. 1985, c. C-11, sect. 13 [para. 20].

National Defence Act Regulations (Can.), Queen's Regulations and Orders for the Canadian Forces, c. 15, sect. 4.20 [para. 33].

Queen's Regulations and Orders - see National Defence Act Regulations (Can.).

Authors and Works Noticed:

Greenspan, E., The Royal Commission: History, Powers and Functions, and the Role of Counsel, Administrative Tribunals (1989), pp. 327, 341 [para. 53].

Sopinka, J., The Role of Commission Counsel, in Christie, Innis, Pross, A. Paul, and Yogis, John, Commissions of Inquiry (1990), pp. 75, 76 [para. 53].

Counsel:

R. Lunau, for the applicant;

I.G. Whitehall, Q.C., for the respondent;

B. McIsaac, Q.C., and L. Watt, for the respondent.

Solicitors of Record:

Gowling, Strathy & Henderson, Ottawa, Ontario, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent;

McCarthy Tétrault, Ottawa, Ontario, for the respondent.

This application was heard in Ottawa, Ontario, on March 16, 17 and 18, 1998, before Reed, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on April 27, 1998.