T-158-01
2003 FC 994
Matthew Stopford (Plaintiff)
v.
Her Majesty the Queen (Defendant)
Indexed as: Stopfordv. Canada (F.C.)
Federal Court, Gibson J.--Ottawa, April 7 and August 25, 2003.
Armed Forces -- Forces member served in Croatia under UN mandated operation -- Suing Crown claiming general, punitive, aggravated, exemplary damages for breach of fiduciary duty -- Eventually awarded 100% disability pension -- Defendant's own report admitting treatment for those having served in Croatia "a disgrace" -- Defendant revealing to plaintiff was poisoned by comrades in Croatia -- No medical, emotional support given at time -- Crown motion for summary judgment dismissing action denied.
Crown -- Trusts -- Crown sued for damages for negligence of servants, agents, breach of fiduciary duty to soldier severely disabled following service in Croatia -- Poisoned by comrades -- Report prepared by Crown treatment available to those serving in Croatia "a disgrace" -- Crown moving for summary dismissal arguing: (1) receiving pension for injuries; (2) other Forces members did not owe plaintiff private law duty of care -- Statutory provision no action lies against Crown where pension awarded -- Case law holding statutory bar applies only if pension awarded on same factual basis as that of action -- Federal Court, O.C.A. having recently recognized Crown's fiduciary duty in cases applicable herein -- Motion denied.
Pensions -- Soldier, disabled following service overseas, suing Crown for negligence, breach of fiduciary duty -- Crown moving for summary dismissal -- Plaintiff in receipt of full disability pension -- Under Pension Act, s. 111, no action lies against Crown where pension awarded -- Statutory bar applies only if pension awarded on same factual basis as action barred -- Plaintiff's argument: part of relief claimed not "in respect of" injury, aggravation during military service but after return to Canada -- Motion denied.
Practice -- Judgments and Orders -- Summary Judgment -- Soldier, badly disabled following service overseas, suing Crown for negligence, breach of fiduciary duty -- Crown moving for summary dismissal as disability due to military service, action statute barred as in receipt of disability pension -- Burden on moving party: satisfy Court no genuine issue for trial or issue so doubtful deserving no further consideration -- Judge to take "hard look" at merits, if possible, make findings of fact, law -- Evidentiary basis supporting plaintiff's argument claim not statute barred as not directly connected with military service, but that disease or aggravation arose after return to Canada -- Motion denied.
This was a motion by the Crown for summary judgment dismissing plaintiff's claim arising from disabling injuries suffered when serving in Croatia under a UN-mandated operation. Following plaintiff's return from the theatre and the onset of serious medical conditions, he was released as unfit and eventually awarded a 100% pension. A report prepared by the Crown itself acknowledged that the treatment of those who had served in Croatia between 1993 and 1995 was "a disgrace". To make matters even worse, in 1999 defendant revealed to plaintiff allegations that he had been poisoned by fellow soldiers whilst serving in Croatia but defendant failed to provide him with any medical or emotional support at that time. In fact, the Military Police Complaints Commission confirmed that "Visine, coalant and naphtha" had been put in his coffee.
Plaintiff's amended statement of claim seeks damages as well as punitive, aggravated and exemplary damages for defendant's breach of fiduciary duty, breach of statutory duty and negligence on the part of its servants and agents. In its defence, the Crown asserts that plaintiff has no cause of action since his disability is the result of military service.
There were two issues upon this motion: (1) the appropriate test for summary judgment; and (2) whether that test was met. On the second issue, it was argued for plaintiff that the answer to the question of whether the Crown owes a fiduciary duty with regard to the treatment and support of injured soldiers is essential in responding to defendant's submission that this action is statute barred, plaintiff having been granted a military pension.
Held, the motion should be dismissed.
Upon an application for summary judgment, the moving party bears the burden of satisfying the Court that the claim presents no genuine issue for trial or that the issue is so doubtful as to deserve no further consideration. It is the responsibility of both sides to "put their best foot forward" to assist the motions judge to decide whether there is a genuine issue for trial. The judge has to take a "hard look" at the merits and, if possible, make findings of fact and law.
There was no dispute that plaintiff has a full disability pension and that, under Pension Act, section 111, no action lies against Her Majesty or any agent or servant thereof in respect of any injury or disease resulting in disability where a pension is or may be awarded under the Act. Crown Liability and Proceedings Act, section 9 is to somewhat the same effect. Of this last-mentioned provision, it has been held that, while broad, for the provision of a pension to bar an action against the Crown, it would have to be given on the same factual basis as the action barred. The purpose of section 9 is to prevent double recovery for the same claim. Plaintiff's argument was that a good part of the relief claimed was not "in respect of" an injury or aggravation thereof directly connected with military service, but rather "in respect of" disease or aggravation thereof arising after plaintiff's return to Canada. An evidentiary basis supporting that submission was before the Court.
As for case law, the Federal Court of Appeal has just recently sustained the decision of Lemieux J. denying the Crown's summary judgment application in a case where a female Captain sued the Crown, claiming damages for breach of fiduciary duty in that her superior officers failed to ensure an atmosphere conducive to the acceptance of women in non-traditional roles: Marsot v. Canada (Department of National Defence). The Court of Appeal held that the Crown had failed to establish that the basis upon which she was awarded a pension was in respect of the same injury or loss which was the basis for her claims.
The issues of summary judgment and alleged breach of fiduciary duty were before the Ontario Court of Appeal in Authorson v. Canada (Attorney General) (2001), concerning a pension administered by the Department of Veterans Affairs (DVA). The Court was in agreement that the Crown was a fiduciary in respect of those whose funds were being administered by the DVA and that duty had been breached by its failure to invest or pay interest on these funds. While Authorson has now been reversed on other grounds, it remains an authority for the proposition that plaintiff may have a right to relief even though in receipt of a pension and the relevant provisions of the Pension Act and the Crown Liability and Proceedings Act notwithstanding.
statutes and regulations judicially
considered
| Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21), s. 9. |
| Federal Court Rules, 1998, SOR/98-106. |
| Pension Act, R.S.C., 1985, c. P-6, s. 111 (as am. by S.C. 2000, c. 34, s. 42). |
| cases judicially considered |
| applied: |
| Apotex Inc. v. Canada (2003), 25 C.P.R. (4th) 479 (F.C.T.D.); Marsot v. Canada (Department of National Defence), [2002] 3 F.C. 579; (2002), 217 F.T.R. 232 (T.D.); affd [2003] F.C.J. 453 (C.A.); Authorson v. Canada (Attorney General) (2001), 58 O.R. (3d) 417; 215 D.L.R. (4th) 496; 33 C.C.P.B. 1; 92 C.R.R. (2d) 224; 157 O.A.C. 278 (C.A.); affg (2000), 53 O.R. (3d) 221; 84 C.R.R. (2d) 211 (S.C.J.). |
| considered: |
| Stopford v. Canada, [2002] 1 F.C. 360; (2001), 11 C.C.E.L. (3d) 235; 209 F.T.R. 295 (T.D.); Sarvanis v. Canada, [2002] 1 S.C.R. 921; (2002), 210 D.L.R. (4th) 262; 284 N.R. 263; Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; (2003), 227 D.L.R. (4th) 385; 36 C.C.P.B. 29; 306 N.R. 335. |
MOTION for summary judgment dismissing an action. Motion denied.
| appearances: |
| James G. Cameron and Paul Champ for plaintiff. |
| Alain Préfontaine for defendant. |
| solicitors of record: |
| Raven, Allen, Cameron & Ballantyne, Ottawa, for plaintiff. |
| Deputy Attorney General of Canada for defendant. |
The following are the reasons for order rendered in English by
Gibson J.:
INTRODUCTION
[1]These reasons follow the hearing on April 7, 2003 of a motion on behalf of the defendant for summary judgment dismissing this action with costs. The defendant's motion was filed on July 26, 2002. The grounds for the motion are stated in the notice of moti on itself in the following terms:
| 1. The Plaintiff was a soldier. He served in Croatia in 1993. He suffered injuries and conditions while in Croatia. They have seriously disabled him. He was awarded a medical pension because of these conditions. They also caused his release from the Forces on 28 October, 1998. Because he was released from the Forces on medical grounds, the Plaintiff also receives an immediate annuity he would not otherwise be entitled to. |
| 2. The claim of this former soldier is based on two allegations. Both should be dismissed summarily. |
| 3. The first claim is in respect of injuries and conditions, or an aggravation thereof, arising out of the Plaintiff's military service. For these injuries, the Plaintiff already receives a pension paid out of the Consolidated Revenue Fund. By operation of law, the Plaintiff has no cause of action; |
| 4. The second claim is based on an allegation that various other members of the Forces owed the Plaintiff a private law duty of care. These other soldiers were performing public law duties. They did not owe Plaintiff a private law duty of care. This is not a proper case in which to extend such a duty; |
| 5. The second claim also fails because proceedings were commenced after the expiry of the applicable limitation period;1 |
BACKGROUND
[2]The plaintiff's action was the subject of an earlier motion to strike. The reasons for decision of Prothonotary Aronovitch dismissing the motion t o strike are reported as Stopford v. Canada.2 Prothonotary Aronovitch's decision was not appealed. The background to the action is, I am satisfied, admirably summarized in paragraphs 3 to 15 of her reasons. Those paragraphs are repeated here verbatim:
It should be borne in mind that for the purposes of a motion to strike a claim, or any part thereof, the facts alleged in the plaintiff's statement of claim must be presumed to be true. The following are the salient facts asserted by the plaintiff.
The plaintiff was a member of the Canadian Armed Forces from 1980 until his release on July 26, 1998. He had attained the rank of warrant officer and participated in three tours of duty in Cyprus and in UN peacekeeping duties in the Special Duty Area of Yugoslavia, Slovenia and Croatia from March until October, 1993. The plaintiff was in good physical, mental and emotional health prior to his service in Croatia.
In March 1993, the plaintiff was sent to Croatia under a UN mandated operation to serve in an area called "South Sector" which has been described by the defendant as having "a pace and intensity of operations unknown to Canadian soldiers since the Korean War". Peacekeepers in the sector were subjected to constant combat conditions and crossfire and witnessed terrible atrocities.
The plaintiff's duties included cleaning the area of organic waste, including human and animal remains, and constructing bunkers using mine pilings that were later found to contain a hazardous substance called bauxite.
No protective clothing, masks or gloves were provided by the military to perform these duties. No clean water was available for washing. The plaintiff was not tested for any exposure to potentially hazardous materials.
In an October 2, 1993 performance review, the defendant determined that the plaintiff's performance in Croatia had been outstanding. On January 15, 1994, the plaintiff was awarded a medal for his contribution to the effort in Croatia.
When the plaintiff returned to Canada in October of 1993, he was given no medical or counselling assistance by the military. A report prepared by the defendant considered that the treatment available to those who had served in Croatia in 1993 to 1995 was "at best arbitrary", "inadequate" and "a disgrace".
During the period of 1993 to 1995, the plaintiff began to experience profuse sweating and joint aches. He sought medical help from the defendant through his superior officers and Armed Forces medical personnel. He was told to drink less coffee.
The plaintiff then developed redness in his eyes and brought this to the defendant's attention. He was told that it was just "red eye" or an allergy. By January of 1996, the plaintiff was going blind in one eye and was incapacitated due to joint pain. On June 26, 1998, the defendant determined that he was medically unfit and he was released from service.
In 1996, the plaintiff applied to the Department of Veterans' Affairs for a disability pension. He initially received a 25% pension, which was increased to 100% on March 14, 2000, after numerous appeals by the plaintiff.
The story does not end there. On August 7, 1999, the plaintiff was informed by the defendant that there were allegations that members of his own troops had poisoned him while he was serving in Croatia. No medical or emotional support was provided by the defendant to the plaintiff at that time.
Following its investigations into the allegations, the Military Police Complaints Commission (MPCC) reported that poisoning had taken place and that the medical and tactical chain of command was aware at the time of the poisoning allegations, and that the plaintiff was not informed. The defendant stated that "Visine, coolant and naphtha were placed in Stopford's coffee".
The plaintiff now suffers from a number of health problems, including post-traumatic stress and depression, partial blindness and significant intestinal problems. At age 38, he has been informed that his life expectancy may be less than 10 years. He is unable to enjoy the quality of life he was accustomed to prior to his illness. He has incurred significant financial burdens resulting from his lengthy pension appeals. His promising military career has ended prematurely.
[3]While the plaintiff filed an extensive affidavit on this application for summary judgment that elaborated to a significant extent on the foregoing summary of the background to this action, I am satisfied that it is not necessary for the purpose of these reasons to go beyond the summary provided by Prothonotary Aronovitch. Suffice it to say, the defendant has not challenged the foregoing summary. Equally, the plaintiff has not challenged in any substantial way the evidence before the Court on behalf of the defendant.
[4]The plaintiff filed two additional affidavits on this motion for summary judgment; first, that of Dr. Jacques J. Gouws, a certified psychologist for independent clinical psychology practice in Ontario; and secondly, that of Jack L. Granatstein, the distinguished research professor of History Emeritus of York University, Toronto at the time he swore his affidavit. Professor Granatstein attests to "a life long personal and professional interest in the Canadian Military".3
[5]In representations on behalf of the defendant filed on this motion, the defendant acknowledges that Dr. Gouws is "a recognized specialist in the diagnosis and treatment of veterans suffering PostTraumatic Stress Disorder. . . and major depression".4 That being said, the defendant further submits that, on cross-examination, Dr. Gouws: first, acknowledged that the Department of Veterans Affairs had been paying his fees ever since the plaintiff became one of his patients; secondly, agreed that all of the plaintiff's psychological conditions were caused by his service in Croatia in 1993, or are aggravations of conditions suffered as a result of his service in former Yugoslavia; thirdly, recognized that the health professionals involved in the care of the plainti ff were not negligent in their treatment of the plaintiff; and finally, acknowledged that he felt he had to advocate, on behalf of the plaintiff, and other veterans, that Canada ought to be doing more for its veterans.
[6]It is also urged on behalf of the defendant that, on cross-examination, Professor Granatstein admitted to having no information relevant to this action to offer, that he does not know the plaintiff or his circumstances or the provisions of the Pension Act5 and that he was not aware of the allegations made in the pleadings or of the evidence tendered in support of those allegations.
[7]None of the foregoing submissions on behalf of the defendant in relation to the evidence of Dr. Gouws and Professor Granatstein was challenged in any substantial way on behalf of the plaintiff.
THE CLAIM AND THE DEFENCE
[8]In his amended statement of claim filed on August 20, 2001, the plaintiff seeks substantial damages as well as punitive, aggravated and exemplary damages and other relief resulting from the defendant's breach of fiduciary duty, breach of statutory duty, negligence by employees, servants, and agents of the defendant for the failure to properly perform all statutory obligations owed to him and negligence by such employees, servants and agents in failing to properly perform their duties in a competent manner towards him.
[9]The foregoing allegations are set out in the following terms:
42. The defendant owes the highest level of fiduciary duty to the plaintiff. It could, and did require that the plaintiff put himself in harm's way in serving his country. The defendant is required to take care of the plaintiff if he is injured as a result of that decision. Here, the defendant has signally failed in it's [sic] duty.
43. The defendant breached its fiduciary obligations to the plaintiff by:
| a) failing to inform the plaintiff until January 17, 2001 of the knowledge that he was poisoned in Croatia in 1993; |
| b) the uncaring and impersonal manner by which the plaintiff was informed of his poisoning in Croatia; |
| c) failing to provide timely and appropriate medical treatment for the plaintiff, despite his repeated requests for such assistance; |
| d) failing to provide appropriate counselling and treatment for the trauma the plaintiff experienced in Croatia; |
| e) deliberately destroying certain records placed on his medical file and then denying having done so; |
| f) failing to assist the plaintiff in obtaining a disability pension; and |
| g) failing to inform the Department of Veterans' Affairs that the plaintiff had been poisoned in 1993. |
44. By reason of the defendant's and her employees, `agents' and `servants' negligence, breach of statutory duties and obligations and breach of fiduciary obligations owed to the plaintiff, the plaintiff suffered injury as a result of poisoning, did not receive adequate medical assistance, and lost his status of employment within the Canadian Armed Forces. He has suffered and continues to suffer losses and damages as a consequence thereof, full particulars of which are as yet unascertained.
45. Due to the intentional, wrongful and high-handed conduct of the defendant, the plaintiff is entitled to receive punitive, aggravated and exemplary damages.6
[10]In her statement of defence filed on March 1, 2001, the defendant alleges that she took all reasonable measures required in the circumstances and that the plaintiff has no cause of action in that his disability results from an injury or disease or an aggravation thereof attributable to or incurred during military service.7 In response to what might be construed as a claim for wrongful dismissal in paragraph 44 of the statement of claim quoted above, the defendant pleads that the plaintiff has no right of action, as service in the Canadian Forces does not create a contractual relationship.
THE ISSUES
[11]Put at their simplest, I am satisfied that the issues on this motion for summary judgment are: first, the appropriate test for summary judgment; and secondly, whether that test has been met. Within the second issue question, the plaintiff addresses the questions of whether or not the defendant has a fiduciary duty to provide care, treatment and support to injured soldiers such as the plaintiff and whether the defendant's agents, employees or servants, owed, continue to owe and fulfilled and continue to fulfill a fiduciary duty of care to the plaintiff. Counsel for the plaintiff urges that answers to those questions are essential to responding to the issue of whether or not the plaintiff's action is statute barred by reason of the plaintiff's receipt of a military pension. Counsel further urges that the evidence before the Court is such as to s upport a conclusion that this action should proceed to trial.
ANALYSIS
| (a) Summary Judgment Principles |
[12]The principles governing the determination of a motion for summary judgment under the rules of this Court [Federal Court Rules, 1998, SOR/98-106] were essentially not in dispute before me. They were, I am satisfied, admirably summarized by my colleague Justice Russell in Apotex Inc. v. Canada,8 where he wrote at paragraphs 9 and 10 of his reasons:
There is no material disagreement between the parties as to the general principles applicable in a motion for summary judgment under rules 213-219 of the Federal Court Rules, 1998. As enunciated in cases such as Granville Shipping Co. v. Pegasus Lines Ltd. S.A. (1996), 111 F.T.R. 189, I am required to find that the claims in question present no genuine issue for trial or that the issue is so doubtful that it deserves no further consideration. Also, each case must be interpreted in its own context and if the necessary facts cannot be found, or if there are serious issues of credibility, the matter should go to trial.
The burden lies with the moving party to establish that there is no genuine issue to be tried, but both parties must "put their best foot forward" to enable the motions judge to decide whether or not there is a genuine issue for trial, and the judge is required to take "a hard look" at the merits and, if possible, make findings of fact and law if the materials allow this. F. Von Langsdorff Licensing Ltd v. S. F. Concrete Technology Inc. (1999), 165 F.T.R. 74, 1 C.P.R. (4th) 88.
I adopt the foregoing paragraphs as my own.
| (b) Has the Test for Summary Judgment Been Met? |
[13]It was not in dispute before me that the plaintiff is now in receipt of a full disability pension and of additional benefits under the Pension Act.9 Elaine Robb, at paragraphs 5 and 7 of her affidavit filed on behalf of the defendant, attests:
At the centre of this scheme is the system of no-fault workers compensation created by the Pension Act. It guarantees that a member of the Forces will receive a pension where the member suffers disability resulting from an injury or disease or an aggravation thereof attributable to or incurred during military service. A member entitled to a pension is also eligible to other benefits.
. . .
Mr. Stopford now is in receipt of a full disability pension [and other benefits that are listed].10 [Emphasis added.]
[14]Section 111 of the Pension Act, until its repeal and replacement by S.C. 2000, c. 34, section 42, assented on October 20, 2000, read as follows:
111. No action or other proceeding lies against Her Majesty or against any officer, servant or agent of Her Majesty in respect of any injury or disease or aggravation thereof resulting in disability or death in any case where a pension is or may be awarded under this Act or any other Act in respect of the disability or death.
[15]While counsel for the plaintiff originally urged before me that the more recent version of section 111 was applicable on the facts of this matter, he subsequently resiled from that position and agreed with the defendant's position that the foregoing version of section 111 is here applicable.
[16]Section 9 of the Crown Liability and Proceedings Act11 is to somewhat the same effect but of broader application. That section 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.
[17]In Sarvanis v. Canada,12 the Supreme Court of Canada emphasized the breadth of the words "in respect of" i n section 9 of the Crown Liability and Proceedings Act, which words also appear in section 111 of the Pension Act. For the Court, Justice Iacobucci wrote at paragraphs 28 and 29:
In my view, the language in s. 9 of the Crown Liability and Proceedings Act, though broad, nonetheless requires that such a pension or compensation paid or payable as will bar an action against the Crown be made on the same factual basis as the action thereby barred. In other words, s. 9 reflects the sensible desire of Parliament to prevent double recovery for the same claim where the government is liable for misconduct but has already made a payment in respect thereof. That is to say, the section does not require that the pension or payment be in consideration or settlement of the relevant event, only that it be on the specific basis of the occurrence of that event that the payment is made.
This breadth is necessary to ensure that there is no Crown liability under ancillary heads of damages for an event already compensated. That is, a suit only claiming for pain and suffering, or for loss of enjoyment of life, could not be entertained in light of a pension falling within the purview of s. 9 merely because the claimed head of damages did not match the apparent head of damages compensated for in that pension. All damages arising out of the incident which entitles the person to a pension will be subsumed under s. 9, so long as that pension or compensation is given "in respect of", or on the same basis as, the identical death, injury, damage or loss. [Emphasis in the original.]
[18]On the basis of the foregoing, counsel for the defendant urges that summary judgment should be granted since the fact of receipt of a pension by the plaintiff bars further recovery "in respect of" the same injury or aggravation thereof resulting in the disability for which the plaintiff is in receipt of the pension. In the result, counsel urges that this action presents no genuine iss ue for trial or, if it does present a genuine issue, that issue is so doubtful that it deserves no further consideration.
[19]Counsel for the plaintiff urges that a substantial portion of the relief that the plaintiff is claiming is not "in respect of" an injury or aggravation thereof that arose out of or was directly connected with military service, a prerequisite to the award of a pension under the Pension Act , but rather is "in respect of" injury or disease or aggravation the reof arising after the plaintiff's return to Canada but nonetheless attributable to the conduct of the defendant or her employees, agents and servants. Such alleged conduct is described in paragraphs 42 to 45 of the amended statement of claim quoted in par agraph 9 of these reasons. I am satisfied that an evidentiary basis for these claims is clearly and unequivocally before the Court in the form of the affidavit of the plaintiff and schedules thereto.13 I reach this conclusion while attaching little if any weight to the affidavits of Dr. Gouws and Professor Granatstein referred to earlier in these reasons.
[20]There is recent authority to support the plaintiff's allegation that the defendant might owe duties to the plaintiff, on the facts of t his matter, that go beyond those recognized by and compensable under the Pension Act.
[21]In Marsot v. Canada (Department of National Defence),14 Captain Marsot claimed against the federal Crown for, among other things, damages for breach of fiduciary duty, a claim here asserted by the plaintiff. At paragraph 28 of his reasons leading to a dismissal of a motion on behalf of the defendant for summary judgment, Justice Lemieux wrote:
In support of her claim for breach of fiduciary duty the plaintiff . . . states the majors who were her immediate supervisors and professional mentors were in a special position of trust and in a fiduciary relationship with her and, because of this, had a special duty of care to act in her best interest and to mentor her as a young infantry officer as well as to ensure the atmosphere within the infantry community was one which was conducive to the acceptance and support of women in non traditional roles. She alleges the majors used the authority which they had vested within them by the federal Crown to abuse her, inflict mental pain and suffering on her, harass her, intimidate her, interfere with her and in the case of one of the majors, assault and batter her, all of which constitute breaches of the fiduciary duty owed to her.
While the nature of the alleged breaches of fiduciary duty detailed in the foregoing quotation are substantially different from those alleged on behalf of the plaintiff in this matter, the essence of the breaches alleged is not dissimilar.
[22]Justice Lemieux concluded at paragraph 56 of his reasons:
I am of the view the defendant's application for summary judgment should be dismissed and this, broadly speaking, for a lack of an evidentiary foundation and for several legal reasons related to the interpretation of section 9 of the CLPA [the Crown Liability and Proceedings Act]. I make no mention of former section 111 of the Pension Act in terms of a statute barring provision because that provision has been repealed and now only provides for the mandatory stay.
Much the same could be said on the record now before me.
[23]Mr. Justice Lemieux's decision in Marsot was upheld by the Federal Court of Appeal15 which provided very brief reasons to the following effect:
We are all of the view that the Motions Judge was correct to conclude that the Crown provided insufficient evidence in support of its summary judgment motion to establish that the basis on which the respondent was awarded a pension under the Pension Act, . . ., is in respect of the same injury, damage or loss as the basis for her claims. We express no opinion on the Motions Judge's interpretation of section 9 of the Crown Liability and Proceeding Act, . . ., which was completed without the benefit of the decision of the Supreme Court of Canada in Sarvanis v. Canada [Citations omitted.]
[24]While I have had the benefit of the decision of the Supreme Court of Canada in Sarvanis, and have referred to it briefly, I am satisfied that it does not significantly impact Justice Lemieux's analysis or my analysis herein.
[25]I note that neither Justice Lemieux nor the Court of Appeal reflected in any significant way on the efficacy of the claim for breach of fiduciary duty that was before them. Such was not the case in Authorson v. Canada (Attorney General).16 While the facts in Authorson, and certain of the issues, were very different from the facts and some issues in this matter, there were substantial similarities in some of the issues. The headnote to the Ontario Court of Appeal decision reads in part as follows:
The Crown, under several statutes, provided a disability pension, a treatment allowance and an income supplement to war veterans. For all three kinds of funds, the governing legislation made provision for the designation of an administrator to manage the funds, and sometimes private funds, for a war veteran who was incapable of managing them. JPA [Mr. Authorson], who was a disabled war veteran, was the representative plaintiff in a certified class action against the federal Crown, which, through the Department of Veterans Affairs ("DVA"), had administered the plaintiff's pension because he was incapable of doing so himself. During the years it administered the funds, the DVA neither invested them nor accrued interest on them, and JPA alleged that this was a breach of fiduciary duty. In 1990, pursuant to s. 21(2) of the Financial Administration Act, . . ., the Crown began to pay interest, and it also enacted s. 5.1(4) of the Department of Veterans Affairs Act to prohibit any claim for interest on the funds prior to January 1, 1990. JPA sued for compensation for the Crown's alleged breach of fiduciary duty, and both he and the Crown moved for summary judgment. JPA's motion was granted by Brockenshire J., and the Crown's motion was dismissed. . . . The Crown appealed. [Citation and reference to the disposition as to costs omitted.]
Thus, the issue of alleged breach of fiduciary duty and the issue of summary judgment were both before the Ontario Court of Appeal.
[26]Justices Austin and Goudge, with Justice Weiler concurring, wrote at paragraph 41 under the heading "The Fiduciary Duty Issue":
When the DVA is directed to administer the pension of a veteran who cannot manage his funds for himself, what is the nature of that relationship? Is it, as the appellant [the Crown] argues, a matter of public law that is beyond the scope of private law remedies? Or, as the respondent [Mr. Authorson] contends, does the administrator owe a fiduciary duty to the veteran?
[27]The appellant Crown relied in part on section 9 of the Crown Liability and Proceedings Act. The Court of Appeal upheld the summary judgment [(2000), 53 O.R. (3d) 221 (S.C.J.)] in favour of Authorson noting that:
All of the material on which Brockenshire J. decided the motions was properly before him and virtually all of that material was based on evidence that had been tendered by the Crown. Significantly, the appellant [Crown] tendered no fresh evidence on the appeal, let alone any evidence that would contradict anything on which the motions judge relied or that would give rise to a genuine issue of fact for trial.17
[28]At paragraph 133 of the reported decision, the following appears:
For these reasons, we agree with the conclusions and dispositions that the motions judge made on each of the issues in appeal. In particular, we agree that the Crown was a fiduciary to the class members while their funds were being administered by the DVA and that the Crown breached its fiduciary duty by failing to invest or pay interest on these funds. In addition, s. 9 of the CLPA is not a bar to this action.
[29]Thus, the Ontario Court of Appeal not only upheld summary judgment in favour of Authorson, it explicitly answered in the affirmative the issue question of whether the Crown owed a fiduciary duty to the veteran on which the veteran could succeed before it.
[30]The decision of the Ontario Court of Appeal in Authorson was appealed to the Supreme Court of Canada and that appeal had been heard and a decision was outstanding when this matter came on for hearing before me. Since that time, the Supreme Court of Canada has delivered judgment.18 While the Supreme Court of Canada granted the appeal, it essentially did not deal with the issue of Mr. Authorson's right to relief on the basis of a fiduciary duty owed by the Crown to him. In paragraph 8 of the reasons delivered on behalf of the Court by Justice Major, the following appears:
The Crown no longer denies that it had a fiduciary duty to the veterans to pay interest on those accounts. However, the Crown claims that it is not liable for its breach of trust because of federal legislation. . . .
[31]Thus, while reversed on other grounds by the Supreme Court of Canada, the decision of the Ontario Court of Appeal stands in response to the question of whether the Crown owed a fiduciary duty to Mr. Authorson and, by extension, the Ontario Court of Appeal decision could be read to confer a right to relief on the plaintiff herein notwithstanding the fact that he is in receipt of a pension and other benefits under the Pension Act and notwithstanding section 111 of that Act and section 9 of the Crown Liability and Proceedings Act. As in Authorson, the evidence before this Court, much of it tendered by the Crown, gives rise to a genuine issue of fact for trial and that issue of fact underlies the issue in law of breach of fiduciary duty, in circumstances akin to the those in which the Ontario Court of Appeal, in Authorson, found the Crown to be a fiduciary.
CONCLUSION
[32]In the result, I conclude that the defendant, the applicant on this motion for summary judgment, has failed to establish that the plaintiff's allegations herein of negligence and breach of fiduciary duty in terms of his treatment by the defendant after his return to Canada following his tour of peacekeeping duties in the special duty area of Yugoslavia, Slovenia and Croatia present no genuine issue for trial or that the issue is so doubtful that it deserves no further consideration. The defendant's motion for summary judgment will be dismissed. The plaintiff is entitled to his costs of the motion in any event of the cause.
1 Motion record of the defendant, Vol.1, Tab A, pp. 001- 002.
2 [2002] 1 F.C. 360 (T.D.).
3 Motion record of the plaintiff, Vol. II, Tab 3, p. 304.
4 Motion record of the defendant, Vol. 4, Tab L, para. 8.
5 R.S.C., 1985, c. P-6.
6 Motion record of the defendant, Vol. 3, Tab J, pp. 732-733.
7 Motion record of the defendant, Vol. 3, Tab K, pp. 752-753.
8 (2003), 25 C.P.R. (4th) 479 (F.C.T.D.), not cited before me; appeal filed April 17, 2003, Court file: A-188-03.
9 Supra, note 5.
10 Motion record of the defendant, Vol. 2, Tab G, p. 469.
11 R.S.C., 1985, c. C-50 [as am. by S.C. 1990, c. 8, s. 21].
12 [2002] 1 S.C.R. 921.
13 Motion record of the plaintiff, Vol. 1, Tab 1.
14 [2002] 3 F.C. 579 (T.D.).
15 2003 FCA 145; [2003] F.C.J. No. 453 (C.A.) (QL).
16 (2001), 58 O.R. (3d) 417 (C.A.).
17 Reasons for judgment, at para. 127.
18 [2003] 2 S.C.R. 40.