Date: 20041213
Citation: 2004 FC 1734
Ottawa, Ontario, Monday, the 13th day of December 2004
PRESENT: PROTHONOTARY MIREILLE TABIB
Docket: T-600-02
BETWEEN:
JEAN-CLAUDE DROLET
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-601-02
BETWEEN:
GEORGES DUMONT
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1659-02
BETWEEN:
RICHARD MARCIL
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1806-02
BETWEEN:
BERNARD THÉRIAULT
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-94-03
BETWEEN:
MARIE-CLAUDE GAGNON
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-423-03
BETWEEN:
PIERRE MARTIN
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-479-03
BETWEEN:
FRANÇOIS LEMIEUX
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1357-03
BETWEEN:
JEAN-CLAUDE CHARETTE
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1358-03
BETWEEN:
GEORGES VILLENEUVE
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1525-03
BETWEEN:
GASTON DUBOIS
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1579-03
BETWEEN:
SAMUEL T. SMITH
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1612-03
BETWEEN:
DANY MALENFANT
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1613-03
BETWEEN:
LUC LOUPIEN
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1685-03
BETWEEN:
GINO DESCHÊNES
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1751-03
BETWEEN:
MICHEL SHEEHY-TREMBLAY
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1902-03
BETWEEN:
ERROL BRAZEAU
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1919-03
BETWEEN:
MARC DESFOSSÉS
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1990-03
BETWEEN:
PAUL LAUZON
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-2005-03
BETWEEN:
RÉMI VOYER
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-2130-03
BETWEEN:
MARTIN GAGNÉ
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-2131-03
BETWEEN:
ANDRÉ LATREILLE
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-2215-03
BETWEEN:
MATTHIEU PINARD
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-2227-03
BETWEEN:
MARTIN LÉVESQUE
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-2323-03
BETWEEN:
LYNN LAROUCHE
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
TABIB P.
[1] These reasons apply to twenty-four separate cases, which nevertheless have in common the fact that they are actions brought by former members of the Canadian Armed Forces for damages as a remedy pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedoms for infringement of their rights guaranteed by sections 7 and 15 of the Charter.
[2] With a few exceptions, the allegations in the statements of claim concern similar factual circumstances, and these allegations are framed in similar language along similar lines. The requests for particulars made by the defendant have accordingly been divided into four major categories, with certain subcategories. At the joint hearing of the motions on September 23, 2004, as it was impossible to deal individually with the 24 cases on the hearing date scheduled, I indicated to the parties the general rules that would applicable in the circumstances. In some categories or subcategories, my decision would finally resolve the matter; in some others, applications specific to certain cases have been finally disposed of so as to illustrate to the parties how the general principles used should be applied to specific cases, so that the parties can apply these decisions in the circumstances peculiar to each case and prepare the 24 corresponding draft orders: any disagreement as to specific details should be submitted to me for a ruling based on written representations.
[3] In connection with a direction made in case T-1683-02 on October 25, 2004, I also had an opportunity to further clarify the way in which the principles stated should be applied to the facts at hand, especially regarding the places and dates of the alleged events.
[4] Unfortunately, the parties were unable to agree on the wording of the orders to be made, so that each case had to be reviewed individually by the Court to finally determine the wording of each order.
[5] These reasons are intended as a summary of the principles which were applied in ruling on each motion, and the orders peculiar to each case only reflect their specific application to the particular cases.
PARTICULARS REGARDING ALLEGED EVENTS AND DECISIONS
Names and functions of persons committing wrongful acts or taking decisions
[6] As mentioned at the hearing, it seems clear from the statements of claim as a whole that the persons who committed the acts or made the decisions complained of were the plaintiffs' hierarchical superiors, acting in the chain of command established by the defendant. Except when the context indicates alleged fault occurring outside the usual chain of command, or when the identity of the persons in question is necessary to enable the defendant to identify with sufficient precision the event being referred to, the identity of the decision-maker or the person who gave the plaintiff an order is not information necessary to the defendant to enable her to know what is complained of so she can respond intelligently to the action.
Dates and places of events and decisions
[7] The date or place where an incident occurred is sometimes, but not invariably, necessary to the defendant so he can identify with sufficient precision what is alleged. Even when the facts alleged are otherwise given in sufficient detail for the defendant to understand what is at issue, an indication in the statement of claim of the specific date and place where an event occurred may nevertheless be necessary, as for example when it is necessary to limit the scope of examinations or because the specific date or place is an essential part of establishing the cause of action or affects the availability of a particular defence for the defendant.
[8] In the cases at issue here, and except when the date or place of an event is necessary to identify an alleged fault, the only purpose served by the date and place of events is to identify the applicable prescription and the temporal situation of the event according to the applicable prescription.
[9] In the case at bar, the applicable prescription periods are six years for causes of action arising in various provinces or outside of Canada, three years, two years or one year for causes of action arising in certain Canadian provinces and six months as set out in the National Defence Act, R.S.C. 1985, c. N-5.
[10] Accordingly, the only useful particular regarding the place where an event occurred is whether it took place in Canada, and if so in what province, and only when the prescription may have begun to run less than six years before the proceedings were brought. As to the date, all that has to be determined is the temporal interval between the cutoff dates of six months, one year, two years, three years or six years before issuance of the statement of claim in which the event occurs. Provided this information can be obtained with reasonable certainty from reading the statement of claim as a whole, additional particulars will not be required.
[11] The parties will note from reading specific orders that particulars as to the date of certain events alleged in standardized paragraphs or subparagraphs in a great number of statements of claim have sometimes been allowed, while they have been disallowed in other cases. The varying treatment of these applications for particulars results from the Court's determination of whether the allegations contained in the statement of claim as a whole otherwise provide sufficient particulars of the facts to which the paragraphs might refer.
[12] Finally, it should be mentioned that it is technically impossible to specify the date and place of a failure to act, as the defendant requires. When the alleged fault is an omission, what must be considered is whether the allegations in the statement of claim make it possible to determine with sufficient certainty the period in which the action could have been taken, and the place where the plaintiff was at that time. For example, if lack of adequate training for a particular mission is alleged, it is clear that if the statement of claim contains the departure date for the mission and the place(s) where the plaintiff has been from enrolment until departure, no further particular is required.
Alleged work overloads
[13] The general allegations in certain statements of claim that a work overload has been imposed on the plaintiff are not sufficient. For the plaintiff to be able to identify what is alleged and respond intelligently, the general nature of the work overload must be specified as well as the periods of time in which the overload is alleged to have been imposed.
Existence of grievances and other remedial action
[14] The defendant argued that the existence of adequate remedial measures by grievance pursuant to the procedures set out in the Queen's Regulations and Orders for the Canadian Forces and in the National Defence Act and by judicial review are a means of defence or a bar to this Court's jurisdiction, and that particulars regarding the exhausting of such remedies by the plaintiffs are necessary to enable the defendant to intelligently present this defence. With respect, while the plaintiff must present the components of his right of action, and in some cases provide particulars on alleged acts when those particulars can serve to assist the defendant in presenting possible defences, he is not required to plead facts that are not essential to his cause of action and are only relevant to making out the defendant's defence.
[15] The defendant's motion in this regard is not one dealing with particulars of an allegation, but adding an allegation that is not otherwise pleaded.
Particulars regarding symptoms, injuries and illnesses
[16] Most of the plaintiffs alleged that they suffered, inter alia, complex physical ailments the symptoms of which may only appear gradually or cumulatively, such as depression and post-traumatic stress syndrome. The date or period when these symptoms appeared for the first time is thus a matter that may be difficult or even impossible to identify. Further, it was alleged in the statements of claim that the plaintiffs did not themselves realize the illness from which they were suffering. Although the date the symptoms appeared may be a key aspect in determining the point when prescription began to run, and so valuable in preparing an intelligent defence, I consider that once the defendant is informed of the date on which the diagnosis was made (a date which the plaintiffs are easily able to determine), in the circumstances she has sufficient information to know whether prescription of the remedy can be argued. The question of the date the symptoms appeared is one which may more appropriately be dealt with in the examinations.
[17] Additionally, the date on which the plaintiffs learned of the connection between the wrongful acts alleged and the symptoms does not have to be precisely indicated.
Particulars regarding pension applications under Pension Act
[18] In view of the Court of Appeal's judgment in Dumont v. Canada, [2004] 3 F.C.R. 338, 2003 FCA 475, the parties agreed that the plaintiffs would specify whether pension applications were made in respect of alleged injuries or illnesses, complaints producing the alleged symptoms or any aggravation thereof, and the result of such applications. In her draft orders the defendant asked that the plaintiffs add as a further particular the fact that no application for judicial review was made in respect of such decisions. Although the plaintiffs voluntarily introduced this particular into their submissions in response to the motion, the Court notes that this particular is neither requested in the defendant's motion nor required under Dumont v. Canada. Accordingly, the Court will not order that this further information be provided as a particular.
Particulars regarding amounts claimed as damages
[19] These requests for particulars are denied, as the defendant does not need them in order to prepare pleadings opposing the statements of claim.
[20] Finally, although the Federal Court Rules, 1998 do not require that the particulars be incorporated in an amended statement of claim, in view of the complexity of the cases at issue and to facilitate and simplify future processing of these cases, it is preferable for the particulars allowed by this order, and any other particulars previously provided, to be incorporated into the re-amended statements of claim.
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"Mireille Tabib"
Prothonotary |
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
Docket: T-600-02
BETWEEN:
JEAN-CLAUDE DROLET
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-601-02
BETWEEN:
GEORGES DUMONT
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1659-02
BETWEEN:
RICHARD MARCIL
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1806-02
BETWEEN:
BERNARD THÉRIAULT
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-94-03
BETWEEN:
MARIE-CLAUDE GAGNON
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-423-03
BETWEEN:
PIERRE MARTIN
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-479-03
BETWEEN:
FRANÇOIS LEMIEUX
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1357-03
BETWEEN:
JEAN-CLAUDE CHARETTE
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1358-03
BETWEEN:
GEORGES VILLENEUVE
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1525-03
BETWEEN:
GASTON DUBOIS
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1579-03
BETWEEN:
SAMUEL T. SMITH
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1612-03
BETWEEN:
DANY MALENFANT
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1613-03
BETWEEN:
LUC LOUPIEN
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1685-03
BETWEEN:
GINO DESCHÊNES
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1751-03
BETWEEN:
MICHEL SHEEHY-TREMBLAY
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1902-03
BETWEEN:
ERROL BRAZEAU
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1919-03
BETWEEN:
MARC DESFOSSÉS
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-1990-03
BETWEEN:
PAUL LAUZON
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-2005-03
BETWEEN:
RÉMI VOYER
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-2130-03
BETWEEN:
MARTIN GAGNÉ
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-2131-03
BETWEEN:
ANDRÉ LATREILLE
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-2215-03
BETWEEN:
MATTHIEU PINARD
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-2227-03
BETWEEN:
MARTIN LÉVESQUE
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
Docket: T-2323-03
BETWEEN:
LYNN LAROUCHE
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: September 23, 2004
REASONS FOR ORDER BY: Prothonotary Mireille Tabib
DATED: December 13, 2004
APPEARANCES:
Jacques Ferron FOR THE PLAINTIFF
Henri Brun (legal adviser)
Pierre Salois FOR THE DEFENDANT
Mariève Sirois-Vaillancourt
SOLICITORS OF RECORD:
JACQUES FERRON FOR THE PLAINTIFF
Québec, Quebec
MORRIS ROSENBERG FOR THE DEFENDANT
Montréal, Quebec