2017 ONSC 931, 2017 ONSC 931

CITATION : O’Farrell et. al. v. Attorney General of Canada et. al., 2017 ONSC 931 COURT FILE NO.: 13-57685 DATE: 2017-02-08 SUPERIOR COURT OF JUSTICE - ONTARIO RE: CAROLINE MARY SARAH O’FARRELL, RICHARD JOHN CAMERON, CONNOR JOHN O’FARRELL CAMERON and KELLY PATRIACIA O’FARRELL CAMERON, Plaintiffs AND: ATTORNEY GENERAL OF CANADA, KEVIN BAILLIE, GARY BEAM, SYLVAIN BERTHIAUME, LUC BOIVIN, GREG CHIAROT, FRANCOIS DUGUAY, MARC GODUE, MIKE HERCHUK, CORY HOEHN, DAVID KOPP, CHRISTINE MACKIE WINDOVER, GERRY OGILVIE and MICHAEL ROBLEE, Defendants BEFORE: Mr. Justice Calum MacLeod COUNSEL: R.

Jeff Anderson & Sharon Johnston, for the Defendant Attorney General of Canada (Moving Party) Peter G. Hagen, for the Defendants Duguay & Windover (Moving Parties) Donald F. Morris, for the Defendants Ogilvie & Robblee (Moving Parties) Pierre Champagne & Julie Paquette for the Defendant Beam (Moving Party) Peter Cronyn, for the Plaintiffs (Responding Parties) HEARD: IN WRITING ENDORSEMENT [ 1 ] The moving parties each bring motions for leave to appeal the decision of the Honourable Mr. Justice Stanley Kershman dated October 11 th , 2016.

In that decision, the motions judge dismissed the moving parties’ motions brought pursuant to Rule 21 of the Rules of Civil Procedure . The moving parties sought an order striking out the statement of claim and dismissing the action. They now seek to appeal from the order declining to grant that relief. [ 2 ] The decision in question is an interlocutory decision because it does not finally decide the issue. The fact that the court declined to strike the pleading on this basis does not preclude the defendants from advancing the same argument at a later stage of the proceeding or at trial.

Leave is required pursuant to s. 19 (1) (

b) of the Courts of Justice Act [1] and is regulated by Rule 62 of the Rules of Civil Procedure [2] . [ 3 ] To obtain leave to appeal an interlocutory decision, the moving parties must satisfy one of the two branches of Rule 62.02 (4). I must be persuaded that the decision in question conflicts with the decision of another judge or court in Ontario and it is desirable that leave to appeal be granted.

Alternatively I must be persuaded that there is good reason to doubt the correctness of the order in question and the appeal involves matters of such importance that leave to appeal should be granted. [ 4 ] For the reasons that follow, I decline to grant leave. Background [ 5 ] The plaintiff was a member of the RCMP and she claims to have been subjected to harassment, assault and sexual assault. She has been assessed as suffering from Post -Traumatic Stress Disorder and has been awarded a partial pension by Veteran Affairs Canada.

The defendants’ therefore submitted that the action was barred by s. 9 of the Crown Liability and Proceedings Act which reads as follows: 9 No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made. [ 6 ] The facts and the allegations are described at greater length in an earlier decision of Justice Charbonneau [3] and in the decision of Justice Kershman [4] from which leave to appeal is sought.

I will not repeat them here. The motions judge summarized the claim as seeking damages for battery, assault, sexual assault, intentional infliction of mental suffering, misfeasance in public office, breach of contract and breach of s. 15 Charter rights. After extensive review of the jurisprudence, it was his view that it was not plain and obvious at a pleadings stage that these claims could not survive s. 9. Analysis [ 7 ] Rule 21 is a tool for attacking a preposterous pleading or for an early determination of a dispositive question of law or a jurisdictional challenge.

Unlike Rule 20 which is couched in mandatory language and permits a profound examination of the evidence, Rule 21 is primarily a pleadings motion and it is discretionary. The dismissal of a Rule 21 motion does not preclude the defendants from subsequently succeeding on the points raised by them. It simply indicates that the motions judge has not been persuaded that he should

exercise his discretion at such a preliminary stage.

Indeed it is inappropriate to strike a pleading unless, assuming the facts as pleaded are true or capable of being proven, there appears to be no chance that the plaintiff can succeed. [5] The objective of the Rule is to weed out hopeless claims and not to create a barrier to claims that are merely difficult or uncertain. [6] Nor is it appropriate on a Rule 21 motion to decide questions of law that are unsettled in the jurisprudence. [7] [ 8 ] Simply because another judge exercised his or her discretion differently on similar facts does not create a conflict in the law.

A conflict exists where different courts have followed different principles in the exercise of discretion. [8] In his reasons, the motions judge carefully and extensively analyzed the decisions put before him by the parties. He concluded that it was not plain and obvious that the claim as pleaded was barred by statute. He found that there was scope for the claims set out in the statement of claim that seek compensation apart from the actual PTSD injury for which the plaintiff is now receiving a pension.

As such, in his view, it is not plain and obvious that, on the pleading as framed, the receipt of a pension is a bar to a claim. [ 9 ] Sexual harassment, discrimination and breach of Charter rights are serious issues particularly within an organization such as the RCMP. It is not clear that it was the intention of s. 9 of the CLPA to limit damages against the Crown to pension remedies on allegations such as these.

In particular, it is hard to imagine that a statutory defence can prevail against a claim for a constitutional remedy guaranteed by s. 24 of the Charter and as the motions judge concluded, it is not settled law that s. 9 can bar claims for damages for wrongs that cannot be the subject of a pension.

Arguably, s. 9 was not intended to insulate individual tortfeasors from the consequence of intentional torts such as those that are pleaded if they were acting outside the scope of their employment or abusing their lawful authority. [9] [ 10 ] It is certainly clear that s. 9 bars recovery for disability caused by PTSD since that is the basis of the pension award. Furthermore s. 9 is written in very broad language since it bars a claim for “death, injury damage or loss” in respect of which the pension is being paid.

In other words there cannot be double recovery and the plaintiff’s remedy for such injury, damage or loss is limited to the amount paid by way of pension. But the motions judge was of the view that on this pleading, it was not possible to isolate the allegations that might be pertinent to claims that could survive s. 9 and he was not prepared to strike the pleading. [ 11 ] In Brownhall v.

Canada , after leave to appeal had been granted, the Divisional Court struck pleadings of negligence and assault based on facts somewhat similar to the case at bar but the court allowed the claim to proceed on other basis that were not clearly caught by s. 9. The court stated that under Rule 21, it was not appropriate to strike out claims that might succeed with a proper evidentiary foundation. [10] The motions judge was fully alive to the ruling in Brownhall . Both he and the Divisional Court were aware that the most authoritative ruling on the import of s. 9 is to be found in Sarvanis v. Canada .

In Sarvanis the Supreme Court held that the recovery that is barred by s. 9 must be “the same loss that creates an entitlement to the relevant pension or compensation” and the pension or compensation must “be made on the same factual basis as the action thereby barred”. [11] [ 12 ] Both the motions judge and I are bound of course by the authority of Brownhall and Sarvanis. On my reading of his decision, the motions judge did his best to apply both decisions. Brownhall does not stand for the proposition that every judge faced with a pleading in which the Crown invokes s. 9 must strike it under Rule 21.

It simply concludes that the motion judge in Brownhall should have struck portions of the claim that on the basis of that particular pleading were clearly barred by s. 9. [ 13 ] Simply because different courts faced with different pleadings apply their discretion in different ways is insufficient to create a conflict in the caselaw. As noted above, it is necessary to find decisions that use different criteria for the exercise of discretion.

Nor is it necessary that I would have reached the same conclusion as the motions judge particularly when granting a discretionary remedy. [ 14 ] I agree with the plaintiff that different results are found in the caselaw and I also agree that there is no real conflict in the caselaw as to the principles to be applied. If there are portions of the claim that clearly seek to recover damages for matters that are the grounds for the pension and they can clearly be segregated from claims that might survive s. 9 then the judge should strike those portions of the claim.

Where however there is any possibility of success, dismissal on a preliminary pleadings motion is not appropriate. Where the facts as pleaded may support either a claim barred by s. 9 or a claim that may not be barred, the pleading should be allowed to stand.

Recall that under Ontario’s system of fact based pleadings, it is not necessary to plead conclusions of law but only the material facts on which the plaintiff relies. [12] It is only portions of the pleading that are plainly and obviously improper that should be struck out. [ 15 ] In conclusion, while there is uncertainty in the caselaw as to the application of s. 9, I do not find that there is conflicting caselaw on the correct approach to be followed on a Rule 21 motion.

Nor am I persuaded there is good reason to doubt the correctness of the motion judge’s decision. [ 16 ] In any event, I do not consider the question of striking this claim at a pleadings stage to be of sufficient general importance to justify leave to appeal. I agree with counsel for the Attorney General that the question of defining the ambit of s. 9 is of significant public importance but I do not agree that this can or ought to be decided on a Rule 21 appeal.

In fact, substantive contested questions of law should generally be determined with a full factual nexus and not on a pleadings motion. [13] [ 17 ] Leave to appeal is refused. Obviously this is not a bar to a subsequent motion under Rule 20 or to relief under any other rule. Surviving a pleadings motion is no guarantee that the action is not in fact barred by s. 9 in whole or in part and of course the plaintiff must actually be able to prove her claim as pleaded. [ 18 ] I will entertain submissions on costs should that be necessary. Mr. Justice C. MacLeod Date: February 10, 2017