Date: 19971117
Docket: T-2587-95
BETWEEN:
| WILLIAM BRUCE MCFARLANE |
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
LUTFY J.:
[1] The defendant seeks the summary dismissal of the plaintiff's action on the ground that his claim for special damages, which he says were caused by the failure to effect his December 1981 release from the Canadian Armed Forces in a manner consistent with the applicable Release Procedures,1 is statute barred. The plaintiff was released for his alleged making of a false answer on his enrolment application.
[2] The plaintiff has filed no affidavit material in response to the defendant's motion for summary judgment. Extracts from his examination for discovery were filed with the defendant's material. However, for the purposes of this motion, I accept the plaintiff's submissions that: (a) he was "pretty sure ... say 65 percent sure" that he provided the correct information orally in the final stage of his enrolment process; (b) the provision relied upon by the defendant for his release should have been Fraudulent Statement on Enrolment2 and not Irregular Enrolment;3 and (c) the release was effected without the required interview and medical and dental examinations.
[3] The defendant submits that the limitation period in this action is either six months pursuant to section 269 of the National Defence Act, 1985 R.S.C., c. N-4 or six years pursuant to paragraph 2(1)(e) of the Limitation of Actions Act, 1989 R.S.N.S., c. 258. The laws relating to the limitation of actions in force in Nova Scotia, where the cause of action arose, are applicable in virtue of section 32 of the Crown Liability and Proceedings Act, 1985 R.S.C., c. C-50. The defendant further contends that the jurisdiction to exercise the equitable remedy of disallowing a defence on the time limitation pursuant to section 3 of the Nova Scotia legislation shall not be exercised where the action is commenced more than four years after the time limitation.
[4] The plaintiff argues that he inadvertently discovered his cause of action concerning his December 1981 release in 1995 when, in response to a request he made for other purposes, he received from the National Archives of Canada the documents which disclosed the information concerning the failure to follow the appropriate release procedures. The plaintiff has filed no affidavit to support this representation. Even if he had, however, this attempt by the plaintiff to rely on the discoverability rule as a response to the time limitation defence must fail.
[5] In Central Trust Co. v. Rafuse,4 Mr. Justice Le Dain reiterated on behalf of the Supreme Court of Canada the general terms of the discoverability rule: "... a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence, ...". This statement of the discoverability rule was once again confirmed in M.(K.) v. M.(H.).5
[6] In this case, the plaintiff apparently did nothing to question his release in 1981. He knew the material facts in 1981. He knew what he had disclosed during the enrolment process. He knew that there had been no release interview or medical and dental examinations. In 1995, he "discovered" the Canadian Forces Administrative Orders and the Queen's Regulations and Orders for the Canadian Forces upon which he relies in this action. The discoverability rule applies to material facts discovered through the exercise of reasonable diligence. It does not apply to the plaintiff's acquiring knowledge of the law. This is particularly true in the absence of the exercise of any reasonable diligence and, more importantly, where the plaintiff had the obligation to acquaint himself with the provisions of the National Defence Act, the Queen's Regulations and Orders and other regulations.6
[7] In summary, the defendant has successfully established the time limitation defence. The plaintiff has filed no affidavit material to set out the circumstances in which he "discovered" his cause of action. He has failed to "put his best foot forward".7 Even if the plaintiff had properly placed before this Court the substance of his oral submissions, the discoverability rule would have no application to the information concerning the administrative procedures which he obtained in 1995. Moreover, the plaintiff did not show that the information was acquired by the exercise of reasonable diligence. For these reasons, the defendant's motion for summary judgment is granted and the plaintiff's action is dismissed. The defendant will have costs on the motion.
Judge
Ottawa, Ontario
November 17, 1997
__________________1 Canadian Forces Administrative Orders 15-2
2 Queen's Regulations and Orders for the Canadian Forces, article 15.01, item 1(d) of the Table to article 15.01.
3 Ibid., item 5(e) of the Table to article 15.01.
6 Supra, note 2, article 5.01. See also article 19.26 concerning Grievances and Complaints.
7 See Feoso Oil Ltd. v. Sarla (The), [1995] 3 F.C. 68 at 82 (F.C.A.).