Date: 20030228
Docket: T-102-03
Neutral citation: 2003 FCT 252
Ottawa, Ontario, this 28th day of February, 2003
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
CLIFTON LEONARD WENZEL
Applicant
and
MINISTER OF NATIONAL DEFENCE
Respondent
REASONS FOR ORDER AND ORDER
[1] The Court has heard the Motion of the Respondent seeking an Order that the Application for Judicial Review filed by the Applicant be dismissed.
[2] The Applicant seeks judicial review of a decision rendered by the Respondent in 1961, more than forty years ago. The Applicant retired from the Royal Canadian Air Force (RCAF) at that time. Since he had less than 25 years of military service, he was entitled only to a return of his contributions to the pension fund for retirees from the RCAF, and had no right to a pension. He had asked the Minister to exercise its statutory discretion to recommend to the Treasury Board that he receive a reduced annuity. The Minister decided in November 1961 not to make such a recommendation.
[3] The Board of Officers decided in 1960 that the Applicant's release from the RCAF was not in the public interest, as the Applicant's primary motivation for leaving military service was to obtain civilian employment, which he believed would be more lucrative. The Service Pension Board confirmed this finding on September 25, 1961. Several attempts to convince the Minister to reconsider the decision over the years have failed. Furthermore, the legislation which provided the Minister with his basis for making a recommendation to the Treasury Board was repealed in 1969.
[4] The most recent communication between the Respondent and the Applicant was a letter received from the Respondent in 2002. This letter confirmed the 1961 decision, thereby refusing to provide the Applicant with any redress. The Applicant now seeks judicial review of the 1961 decision or, in the alternative, he seeks review of a letter from the Respondent dated December 5, 2002, in which the delegate of the Respondent stated that it was unable to reconsider a decision rendered over forty years ago.
[5] I do not accept that the 2002 letter constitutes the decision. It is only a confirmation of the decision that was made in 1961. I accept the submission of the Respondent that it is not appropriate to "bootstrap" the letter issued in 2002 to the 1961 decision in an attempt to have this Court review the original decision.
[6] Furthermore, the record indicates that the Applicant is interested in revisiting the 1961 decision. A review of this decision is clearly out of time. Subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7 provides that an application for judicial review must be made within thirty days of the date on which the decision was communicated by the decision maker. No extension of time was sought in the present case. Even by other, more generous standards to which the Respondent alluded, this application would be out of time.
[7] The letters filed as Exhibit E and Exhibit F to the affidavit in the Motion Record indicate that the Applicant was interviewed and apprised of the consequences of his voluntary release from the regular RCAF, notwithstanding that he would be joining the RCAF Reserve upon such release. He chose to accept the voluntary release, and stated his intention to do so by providing a signed letter dated October 26, 1960, which is subsequent to the date on which he was advised of the ramifications of his proposed decision.
[8] The Applicant was represented by counsel during the process which culminated in his voluntary release and in the decision of Pension Service Board not to recommend that a reduced annuity be paid. In addition, remedies were available to the Applicant at that time. A grievance could have been filed pursuant to the provisions of the National Defence Act which were in force during the relevant period. Furthermore, the information which the Applicant did not obtain until recently could have been sought through an order of certiorari. Such an order would have been sought in the provincial courts, as this Court did not assume its present form and powers until 1971.
[9] Given the above considerations, I consider that the application for judicial review has no likelihood of success whatsoever.
[10] Rule 221 of the Federal Court Rules, 1998 provides that a pleading may, on motion, be struck out on the ground that it discloses no reasonable cause of action. There is no specific rule for striking out applications or notices of motion. This characteristic was discussed by Strayer J.A. in the decision in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.) at pages 596 and 597:
[...] the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. [...]
[11] Justice Strayer continued at page 600:
[...] This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 [now Rule 4] by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion. [citation omitted] [emphasis added]
[12] The motion of the Respondent has been properly filed and argued by both parties. I am satisfied based on the submissions of the Respondent that the Application of the Applicant is bereft of success.
ORDER
THIS COURT ORDERS that:
1. The Motion of the Respondent is granted without costs.
2. The Application for judicial review is dismissed.
____________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-102-03
STYLE OF CAUSE : CLIFTON LEONARD WENZEL AND
THE MINISTER OF NATIONAL DEFENCE
PLACE OF HEARING : Ottawa, Ontario
DATE OF HEARING : February 27, 2003
REASONS FOR ORDER : THE HONOURABLE JUSTICE BEAUDRY
APPEARANCES :
Colonel Michel W. Drapeau FOR THE APPLICANT
Alain Préfontaine FOR THE RESPONDENT
SOLICITORS OF RECORD :
Barrick Poulsen LLP FOR THE APPLICANT
Ottawa, Ontario
The Minister of National Defence FOR THE RESPONDENT
Ottawa, Ontario