[2002] 1 F.C. 360
T-158-01
2001 CFPI 887
Matthew Stopford (Plaintiff)
v.
Her Majesty the Queen (Defendant)
Indexed as: Stopford v. Canada (T.D.)
Trial Division, Aronovitch P.—Ottawa, May 28 and August 14, 2001.
Practice — Pleadings — Motion to Strike — Statement of claim for failure to disclose reasonable cause of action — Plaintiff claiming damages arising from injuries suffered before, after service in Croatia — Upon return to Canada experiencing health problems, resulting in release from Armed Forces as medically unfit — After numerous appeals, awarded 100% pension — Statement of claim alleging negligence, breach of fiduciary duty — Motion dismissed — Based on undetermined scope of fiduciary duties, not plain, obvious plaintiff’s claim in this regard should fail — Duplessis v. Canada not standing for proposition claim for damages suffered post-deployment not barred by Pension Act, s. 111 Crown Liability and Proceedings Act, s. 9 — Injuries said to have resulted from intentional poisoning by own troops; denial of adequate, timely assistance, treatment; premature loss of employment; likely curtailment of life expectancy — Not clear pension providing compensation for such injuries — Whether poisoning continuing after superiors aware of it evidentiary issue requiring discovery — Also unclear whether injury incidental to military life (poisoning by comrades) compensable by pension — Claims for losses suffered by having to pursue appeals before receiving full pension possibly not barred by Pension Act, s. 111, Crown Liability and Proceedings Act, s. 9 — Whether statutory bars covering alleged torts, breach of fiduciary duty committed after discharge serious question of law for determination on merits — Term “wrongful” struck where used in conjunction with loss of employment as such allegation untenable in context of Armed Forces.
Armed Forces — Plaintiff released from service in 1998 as medically unfit — In good health prior to service in Croatia in 1993 — Initially granted 25% pension by DVA — After numerous appeals, awarded 100% pension — In 1999 defendant informing him of allegations poisoned by own troops — Statement of claim alleging negligence, breach of fiduciary duty — Motion to strike dismissed — Based on undetermined scope of fiduciary duties, not plain, obvious claim in this regard should fail — Damages claimed for injuries resulting from alleged intentional poisoning by own troops; denial of adequate, timely assistance, treatment; premature loss of employment; likely curtailment of life expectancy — Not clear pension providing compensation for such injuries — Whether poisoning continuing after superiors aware of it requiring discovery — Also unclear whether injury incidental to military life (poisoning by fellow soldiers) compensable by pension — Claims for losses suffered by having to pursue appeals before receiving full pension possibly not barred by Pension Act, s. 111, Crown Liability and Proceedings Act, s. 9 — Whether statutory bars covering alleged torts, breach of fiduciary duty committed after discharge serious question of law for determination on merits — Term “wrongful” struck where used in conjunction with loss of employment as such allegation untenable in context of Armed Forces.
Pensions — Pension Act, s. 111 prohibiting action against Crown in respect of injury where pension may be awarded in respect of disability — Plaintiff released from service as medically unfit — Becoming ill after 1993 service in Croatia — Initially granted 25% pension by DVA — After numerous appeals, awarded 100% pension — After release, informed poisoned by own troops — Claiming damages for injuries as result of alleged intentional poisoning; denial of adequate, timely assistance, treatment; premature loss of employment; shortened life expectancy — Duplessis v. Canada not standing for proposition claim for injuries suffered post-deployment not covered by statutory bars — But not clear pension providing compensation for injuries claimed — Unclear whether injury incidental to military life (poisoning by comrades), compensable by pension — Claims related to losses suffered by having to pursue several appeals before receiving full pension possibly not within s. 111 — Whether statutory bars cover alleged torts, breach of fiduciary duty committed after discharge serious question of law for determination on merits.
Crown — Crown Liability and Proceedings Act, s. 9 prohibiting proceedings against Crown, Crown servant in respect of claim if pension paid, compensation payable — Plaintiff released from Armed Forces as medically unfit — Becoming ill after 1993 service in Croatia — After release, informed poisoned by own troops — After numerous appeals, awarded 100% pension — Injuries claimed results of alleged intentional poisoning; denial of adequate, timely assistance, treatment; premature loss of employment; shortened life expectancy — Not clear pension providing compensation for such injuries — Whether poisoning continuing after superiors aware of it evidentiary issue requiring discovery — Also unclear whether injury incidental to military life (poisoning by comrades), compensable by pension — Claims related to losses suffered by having to pursue several pension appeals possibly not within Crown Liability and Proceedings Act, s. 9 — Whether statutory bars cover alleged torts, breach of fiduciary duties committed after discharge serious question of law for determination on merits.
This was a motion to strike the statement of claim for failure to disclose a reasonable cause of action. The plaintiff served in a peacekeeping mission in Croatia in 1993. In the course of his duties he handled human and animal remains as well as bauxite, a hazardous substance. Neither protective clothing, masks or gloves nor clean water for washing were provided to perform these duties. The plaintiff was not tested for exposure to potentially hazardous materials. When he returned to Canada, he began to experience physical ailments which resulted in his release from the Armed Forces on June 26, 1998 as medically unfit. Initially the plaintiff received a 25% pension, which was increased to 100% only after numerous appeals. In 1999, the plaintiff was informed by the defendant that there were allegations that members of his own troop had poisoned him while he was serving in Croatia. No medical or emotional support was provided by the defendant at that time. The statement of claim alleges both negligence and breach of fiduciary duty. The Crown sought to strike the entire statement of claim on the ground that the plaintiff was in receipt of a pension for his injuries and was thus barred by statute from requesting additional compensation from the courts. Pension Act, section 111 prohibits any action against the Queen in respect of any injury where a pension is or may be awarded in respect of the disability, and Crown Liability and Proceedings Act, section 9 prohibits any proceedings 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.
The issue was whether it was plain and obvious that the claim could not succeed.
Held, the motion should be dismissed, except with respect to the allegation of “wrongful” termination.
This Court recently held, in Duplessis v. Canada, that the question whether the Crown had breached its fiduciary duty by failing to provide adequate support and counselling to a soldier upon his return from military service in Croatia was a serious question to be determined on the merits.
The law of fiduciary duty is not settled and the categories giving rise to a new fiduciary duty remain open. Based on the undetermined scope of fiduciary duties, it was not plain and obvious that the plaintiff’s claim in this regard should fail.
The question remained as to whether the plaintiff’s claims fell within the scope of Pension Act, section 111 and Crown Liability and Proceedings Act, section 9. The plaintiff argued that his claim arose from damages suffered “post-deployment” due to the defendant’s conduct, and was therefore not based on a disability “resulting from an injury or disease or an aggravation thereof”. The plaintiff relied on Duplessis v. Canada. That case does not stand for the proposition that as long as a claim arises from damages suffered “post-deployment” it is not covered by the scope of the statutory bars. But it was not plain and obvious that the plaintiff had been awarded a pension in relation to the injuries claimed, i.e. the results of alleged intentional poisoning, the denial of adequate and timely assistance and treatment, the premature loss of employment, and the likely shortening of his life expectancy. It could not be concluded that such injuries were indistinguishable from the physical and mental disabilities suffered by the plaintiff in connection with his military service for which he was in receipt of a pension. It had yet to be established whether the poisoning was allowed to continue after the plaintiff’s superiors knew of it, thus raising at the least, an evidentiary issue which will require discovery. More importantly, while the poisoning, apparently intentional, was perpetrated by his comrades-in-arms, it was not evident that this was the sort of injury, incidental to military life, which was compensable by a pension.
The plaintiff also claimed losses in relation to having to conduct numerous pension appeals before receiving his full pension. Such losses may not fall within the scope of Pension Act, section 111 or Crown Liability and Proceedings Act, section 9 or may not have been compensated under the plaintiff’s pension.
Nor was it plain and obvious that the plaintiff was barred from bringing a claim based on the defendant’s alleged failure to inform him that he had been deliberately poisoned while serving in Croatia. Ostensibly, this was a claim of negligent conduct that aggravated a disability within section 111 of the Pension Act. But the plaintiff based his claim both on the defendant’s failure to inform him, before and after his discharge, and on the uncaring and impersonal manner in which he was eventually informed, which occurred after his discharge. Whether the relevant statutory bars cover alleged torts or breaches of fiduciary duties after discharge from military service raised a serious question of law for determination on its merits.
The term “wrongfully” should be struck from the claim where it is used in conjunction with loss of employment. Such an allegation is untenable in the context of the Armed Forces.
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, r. 221(1)(a).
Pension Act, R.S.C., 1985, c. P-6, s. 111.
CASES JUDICIALLY CONSIDERED
applied:
Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335; (1984), 13 D.L.R. (4th) 321; [1984] 6 W.W.R. 481; 59 B.C.L.R. 301; [1985] 1 C.N.L.R. 120; 20 E.T.R. 6; 55 N.R. 161; 36 R.P.R. 1; Authorson v. Canada (Attorney General) (2000), 53 O.R. (3d) 221 (Sup. Ct.).
considered:
Duplessis v. Canada (2000), 8 C.C.E.L. (3d) 75 (F.C.T.D.); Callie v. Canada, [1991] 2 F.C. 379 (1991), 49 E.T.R. 276; 41 F.T.R. 59 (T.D.); Arsenault v. Canada (1995), 131 D.L.R. (4th) 105; 105 F.T.R. 28 (F.C.T.D.); Berneche v. Canada, [1991] 3 F.C. 383 (1991), 133 N.R. 232 (C.A.).
referred to:
Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; (1990), 74 D.L.R. (4th) 321; [1990] 6 W.W.R. 385; 49 B.C.L.R. (2d) 273; 4 C.C.L.T. (2d) 1; 43 C.P.C. (2d) 105; 117 N.R. 321; Perera v. Canada, [1997] F.C.J. No. 199 (T.D.) (QL); The Queen v. Operation Dismantle Inc., [1983] 1 F.C. 745 (1983), 3 D.L.R. (4th) 193; 39 C.P.C. 120; 49 N.R. 363 (C.A.); Vulcan Equipment Co. Ltd. v. The Coats Co., Inc., [1982] 2 F.C. 77 (1981), 58 C.P.R. (2d) 47; 39 N.R. 518 (C.A.); VISX Inc. v. Nidek Co. (1998), 82 C.P.R. (3d) 289 (F.C.A.); Gallant v. The Queen in right of Canada (1978), 91 D.L.R. (3d) 695 (F.C.T.D.); Sylvestre v. R., [1986] 3 F.C. 51 (1986), 30 D.L.R. (4th) 639; 72 N.R. 245 (C.A.); Cottle v. Canada (Minister of National Defence) (1998), 148 F.T.R. 88 (F.C.T.D.); Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; (1989), 69 O.R. (2d) 287; 61 D.L.R. (4th) 14; 26 C.P.R. (3d) 97; Hodgkinson v. Simms, [1994] 3 S.C.R. 377; (1994), 117 D.L.R. (4th) 161; [1994] 9 W.W.R. 609; 49 B.C.A.C. 1; 97 B.C.L.R. (2d) 1; 16 B.L.R. (2d) 1; 6 C.C.L.S. 1; 22 C.C.L.T. (2d) 1; 57 C.P.R. (3d) 1; 95 DTC 5135; 5 E.T.R. (2d) 1; 171 N.R. 245; 80 W.A.C. 1; Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48 [1999] 2 C.N.L.R. 60; (1998), 156 F.T.R. 1 (T.D.); Chippewas of the Nawash First Nation v. Canada (Minister of Indian and Northern Affairs) (1999), 251 N.R. 220 (F.C.A.).
MOTION to strike statement of claim alleging negligence and breach of fiduciary duty on the ground that it disclosed no reasonable cause of action because the plaintiff was in receipt of a pension for injuries sustained when an Armed Forces member and was thus barred by statute from seeking additional compensation in the courts. Motion dismissed, except that the term “wrongful” was ordered struck where used in conjunction with loss of employment.
APPEARANCES:
James G. Cameron 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
[1] Aronovitch P.: Matthew Stopford claims damages in the amount of 7.5 million, including punitive and exemplary damages, against the defendant, arising from injuries he suffered both before and after performing his duties as a warrant officer in the Balkans in 1993.
[2] The Crown seeks to strike the entire statement of claim on the ground that the plaintiff is in receipt of a pension for his injuries and is thus barred by statute from requesting additional compensation from the courts.
FACTS
[3] 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.
[4] 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.
[5] 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.
[6] 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.
[7] 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.
[8] 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.
[9] 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”.
[10] 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.
[11] 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.
[12] 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.
[13] 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.
[14] 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”.
[15] 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.
[16] The plaintiff brought a claim against the defendant on January 26, 2001, for damages resulting from the defendant’s:
(a) breach of fiduciary duty;
(b) breach of statutory duty;
(c) negligence for failing to properly perform all statutory obligations;
(d) negligence for failing to perform duties competently;
[17] In the statement of claim, the plaintiff alleges negligence and breach of fiduciary duty as follows:
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 Veteran’s 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 wrongfully 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.
Motion to Strike Pursuant to Rule 221
[18] The defendant relies on paragraph 221(1)(a) of the Federal Court Rules, 1998 [SOR/98-106], which provides that all or part of a statement of claim may be struck for lack of a cause of action.
[19] The applicable test and principles for striking a pleading pursuant to paragraph 221(1)(a), are well established and supported by ample jurisprudence. The threshold is set high. In order to prevail, the Crown must demonstrate that it is plain and obvious and beyond doubt that the claim sought to be struck cannot succeed.
[20] In the context of a motion to strike, a statement of claim is to be read as whole, and generously construed, such that a mere “germ” or “scintilla” of a cause of action will suffice to maintain it. A party to an action is also not to be deprived of his or her right of action merely because the arguments made are novel or tenuous, all the more so in areas where the law is unsettled. Consequently this Court has rejected motions to strike where the issues in play have raised serious questions of law, or arguable questions of mixed fact and law which are best left for determination by the trial judge (see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Perera v. Canada, [1997] F.C.J. No. 199 (T.D.) (QL); The Queen v. Operation Dismantle Inc., [1983] 1 F.C. 745 (C.A.); Vulcan Equipment Co. Ltd. v. The Coats Co., Inc., [1982] 2 F.C. 77 (C.A.); VISX Inc. v. Nidek Co. (1998), 82 C.P.R. (3d) 289 (F.C.A.)).
[21] The defendant submits that the plaintiff’s entire cause of action flows from injuries he suffered during his service in Croatia. Since he is in receipt of a full pension for these disabilities, he is barred from seeking further compensation from the courts. The plaintiff’s statement of claim should therefore be struck as it discloses no cause of action.
[22] The defendant cites section 111 of the Pension Act, R.S.C., 1985, c. P-6 and section 9 of the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 [as am. by S.C. 1990, c. 8, s. 21], which provide, respectively:
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.
…
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 any agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made.
[23] The defendant explains that the purpose of these provisions is to prevent the Crown from paying twice for the same injury. The Crown’s position is that the plaintiff’s cause of action is captured by the words “in respect of an injury … where a pension is or may be awarded … in respect of the disability”.
[24] The defendant also states that, to the extent that the plaintiff attempts to claim damages based on wrongful dismissal, the Crown is in no way contractually bound to members of the Armed Forces (see Gallant v. The Queen in right of Canada (1978), 91 D.L.R. (3d) 695 (F.C.T.D.), at pages 696-697; Sylvestre v. R., [1986] 3 F.C. 51 (C.A.), at page 53; Cottle v. Canada (Minister of National Defence) (1998), 148 F.T.R. 88 (F.C.T.D.), at paragraphs 51-52).
Analysis
[25] This Court has recently dealt with a motion to strike a statement of claim in which the plaintiff alleged, inter alia, that the Crown breached its fiduciary duty by failing to provide adequate support and counselling to the plaintiff upon his return from military service in Croatia (see Duplessis v. Canada (2000), 8 C.C.E.L. (3d) 75 (F.C.T.D.)). At paragraphs 30 and 31, the Court determined that:
From the jurisprudence, it is evident that the categories giving rise to a fiduciary duty remain open. Terms such as “power” and “particularly vulnerable” have scope for interpretation and have not been judicially considered in respect of the relationship of the soldier to the Minister of National Defence. No jurisprudence was submitted wherein these terms have been considered in the context of military service or would preclude a determination that the relationship of soldier to the Crown may be a unique relationship in the manner of Guerin. The defendant may have a stronger argument in that regard, but it is not conclusive.
Given the facts pleaded and continued prospects for the development of new fiduciary relationships, I cannot conclude that it is plain and obvious that Sergeant Duplessis’ claim should fail. There is a serious question of law here that is more appropriately left for determination by the trial judge on the merits.
[26] Notwithstanding the able arguments of Crown counsel, I do not agree that Duplessis was wrongly decided on this issue. While it is clear that the application of fiduciary duty has been generally restricted to private law, I am not satisfied that it has been categorically excluded from the public law context. I take the following words of Dickson J. (as he then was) in Guerin et al. v. The Queen et al., [1984] 2 S.C.R. 335, at pages 384-385 to be instructive.
It is sometimes said that the nature of fiduciary relationships is both established and exhausted by the standard categories of agent, trustee, partner, director, and the like. I do not agree. It is the nature of the relationship, not the specific category of actor involved that gives rise to the fiduciary duty. The categories of fiduciary, like those of negligence, should not be considered closed. See, e.g. Laskin v. Bache & Co. Inc. (1971), 23 D.L.R. (3d) 385 (Ont. C.A.), at p. 392; Golden Mines Ltd. v. Revill (1974), 7. O.R. 216 (Ont. C.A.), at p. 224.
It should be noted that fiduciary duties generally arise only with regard to obligations originating in a private law context. Public law duties, the performance of which requires the exercise of discretion, do not typically give rise to a fiduciary relationship. As the “political trust” cases indicate, the Crown is not normally viewed as a fiduciary in the exercise of its legislative or administrative function. The mere fact, however, that it is the Crown which is obliged to act on the Indians’ behalf does not of itself remove the Crown’s obligation from the scope of the fiduciary principle. [Emphasis added.]
[27] I appreciate that Dickson J. viewed the fiduciary duty in Guerin to be in the nature of a private law duty. However, I am more impressed by his concern to articulate a broad definition based on the nature of the relationship at issue, not the actors involved. That he viewed the concept of fiduciary duty as possibly extending beyond the private law sphere is revealed in his qualifiers “generally arise”, “not normally” and “not typically”. Moreover, I do not take his words to imply that the only exceptions to the private/public law restriction occur in the context of sui generis relationships or where the duty at issue “is in the nature of a private law duty”.
[28] Nor do I take this to be the implication of the Court of Appeal’s decisions in Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48 (C.A.) or Chippewas of the Nawash First Nation v. Canada (Minister of Indian and Northern Affairs) (1999), 251 N.R. 220 (C.A.), cases referred to by the Crown at the hearing of this motion.
[29] It is significant that in Callie v. Canada, [1991] 2 F.C. 379 (T.D.), at pages 393-394, Joyal J. determined that no fiduciary duty rests on the Crown in administering the Pension Act:
Thus … a mere statutory direction to officers of the Crown to administer a fund or sum of money for the benefit of designated persons does not necessarily imply the existence of a fiduciary relationship between the two parties. In fact, I believe that this is the case with respect to the Crown’s statutory duty to administer the plaintiff’s pension for his benefit. While the Crown may have an administrative or governmental obligation to administer his pension funds accordingly, this obligation does not amount to a trust or fiduciary duty. [Emphasis added.]
[30] I am not convinced, however, that this case, now 10 years old, has settled the matter. Indeed, very recently, in Authorson v. Canada (Attorney General) (2000), 53 O.R. (3d) 221 (Sup. Ct.), at paragraphs 23-26, Brockenshire J. of the Ontario Superior Court of Justice drew a broad interpretation of Guerin. This led him at paragraph 27, to expressly disagree with the result in Callie:
Joyal J. in Callie v. Canada viewed the pensions and allowances as government funds, subject to government discretion. As I hope I have clearly indicated earlier, obviously when parliament would appropriate funds to the DVA to be used for pensions and allowances, the actual allocation of those funds was left to the discretion of the department and more particularly to the tribunal. At that stage, it could be said the appropriation was subject to a “political trust”. However, once the allocation was made and the pension or allowance granted, then each and every payment of that particular pension or allowance was the property of the veteran. The discretion to be exercised in the administration of those pensions and allowances for disabled veterans was no longer simply the discretion of the Crown but was a discretion to be used in accordance with equitable principles governing a fiduciary acting on behalf of the veteran and his or her dependents. (I was advised by counsel that Joyal J. may have been misinformed as to the premise on which the second part of his judgment, re a set-off, was based.) I am not bound by, and disagree with the findings and result in Callie v. Canada.
[31] I am satisfied, therefore, that the law of fiduciary duty is not settled and the categories giving rise to a new duty fiduciary remain open (see also Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, at page 645; Hodgkinson v. Simms, [1994] 3 S.C.R. 377, at paragraph 29). It should be remembered that the question at issue is whether the plaintiff’s claim lacks a scintilla of a cause of action such as to justify denying him his day in court. Based on the undetermined scope of fiduciary duties, I conclude that it is not plain and obvious that Matthew Stopford’s claim should fail.
[32] This leaves the question of whether the plaintiff’s claims fall within the scope of section 111 of the Pension Act and section 9 of the Crown Liability and Proceedings Act. Naturally enough, the plaintiff forwards a narrow interpretation of those provisions. The plaintiff’s claim, it is argued, arises from damages suffered “post-deployment” by the defendant’s conduct, and is not therefore based on a disability “resulting from an injury or disease or an aggravation thereof”. This moves the claim outside the scope of the statutory bars.
[33] The plaintiff relies heavily on this Court’s determination in Duplessis. In Duplessis, at paragraphs 68-71, the Court was not convinced that the injuries forming the basis of Sergeant Duplessis’ claim were indistinguishable from the aggravation of his post-traumatic stress syndrome, or that those injuries had already been compensated for under his pension:
The plaintiff does not claim that he is disabled as a result of the defendant’s conduct. The plaintiff’s argument is that Sergeant Duplessis’ true losses are greater than the compensation which he received by way of pension. He was humiliated, discriminated against, isolated, branded a trouble maker, provoked to breach the chain of command and improperly released. The breaches of the Crown in not providing the support necessary to Sergeant Duplessis, are stated to have consequences separate from his disorder namely, by his isolation or stigmatization, mental distress, humiliation and loss of dignity.
As a preliminary matter, the Crown does not maintain that Sergeant Duplessis has sustained a separate injury or set of injuries for which compensation is payable within the meaning of section 111 of the Pension Act, such as to preclude any further claim for damages. The Crown’s position, as I understand it, are that the injuries, which are claimed to result from his mistreatment, are either related to or symptomatically indistinguishable from the aggravation of his syndrome.
Although the nature of the plaintiff’s injuries are similar in nature being psychological and affective, they are alleged to be distinct, unrelated to his disorder and resulting uniquely from the conduct of his superiors. Under the circumstances, it is inappropriate to evaluate the distinctiveness, if any, of the injuries which Sergeant Duplessis claims to have resulted from his treatment, in the context of this motion. As to the pension awards on which the defendant relies, these are neither complete nor conclusive in that regard. I therefore decline to merge Sergeant Duplessis’ claims as merely an aggravation of his post-traumatic stress disorder.
Absent clearer evidence that the pension entitlement was intended to cover and does cover the injuries which form the basis for this claim, and that these injuries are in fact related to or indistinguishable from the aggravation of his syndrome, I cannot find it plain and obvious that the plaintiff has already been awarded a pension in relation to the injuries claimed. This finding applies equally to section 9 of the Crown Liability and Proceedings Act on which the Crown relies to bar Sergeant Duplessis’ claim in tort.
[34] I do not agree with the plaintiff that Duplessis stands for the proposition that as long as a claim arises from damages suffered “post-deployment” it is not covered by the scope of the statutory bars. However, as was found in Duplessis, I do not find it plain and obvious that Matthew Stopford has been awarded a pension in relation to the injuries claimed in the within action. As with Duplessis, the present claim is for damages resulting from the conduct of the plaintiff’s superiors. The injuries claimed are the results of alleged intentional poisoning, the denial of adequate and timely assistance and treatment, the premature loss of the plaintiff’s status and employment in the services, culminating in the likely curtailment of his life expectancy. These injuries are claimed to be due to the intentional and negligent conduct of the defendant. I cannot conclude, in the context of this motion, that the injuries giving rise to this action are indistinguishable from the physical and mental disabilities suffered by the plaintiff in connection with his military service for which he is in receipt of a pension.
[35] I am also not satisfied that such injuries may be compensated by pension. As an example, it is not clear that Mr. Stopford has been compensated, or may be compensated, by means of a disability pension, either for the poisoning that occurred or for the alleged failure of his superiors to inform him of the poisoning. Indeed, it has yet to be established whether the poisoning was allowed to continue after his superiors knew of it. At the least, this raises an evidentiary issue which will require discovery. More importantly, while the poisoning, apparently intentional, was perpetrated by his comrades-in-arms, it is not evident that this is the sort of injury, incidental to military life, which is compensable by a pension.
[36] The plaintiff’s claim also includes allegations that the defendant failed to assist him in obtaining his pension, including a failure to inform the Department of Veterans’ Affairs that the plaintiff had been poisoned in 1993. The plaintiff further alleges that the defendant deliberately destroyed records in his medical file. These claims logically relate to losses suffered by the plaintiff in relation to having to conduct numerous pension appeals before receiving his full pension. I am not convinced that such losses fall within the scope of section 111 of the Pension Act or section 9 of the Crown Liability and Proceedings Act, or that they have been compensated under the plaintiff’s pension.
[37] Nor do I find it plain and obvious that the plaintiff is barred from bringing a claim based on the defendant’s alleged failure to inform him that he had been deliberately poisoned while serving in Croatia. Ostensibly, this is a claim of negligent conduct that aggravated a disability within the meaning of section 111 of the Pension Act. In my view, however, Matthew Stopford presents the novel claim for injuries suffered as a result of the defendant’s conduct while he was no longer in military service. In Arsenault v. Canada (1995), 131 D.L.R. (4th) 105 (F.C.T.D.), at page 133, Wetston J. concurred with a finding of Dubé J. in Berneche v. Canada, [1991] 3 F.C. 383 (C.A.), that “the Pension Act provid[es] a comprehensive scheme … for addressing valid claims for injuries sustained while in military service”. Officer Stopford was discharged from the military on June 26, 1998. He was not informed by the defendant of the poisoning allegations until August 7, 1999. Mr. Stopford bases his claim both on the defendant’s failure to inform him, before and after his discharge, and on the “uncaring and impersonal manner” in which he was eventually informed, which, again, occurred after his discharge. Whether the scope of the relevant statutory bars cover alleged torts or breaches of fiduciary duties committed by the defendant against a plaintiff after he or she has been discharged from military service raises a serious question of law that is proper for determination on its merits.
[38] That said, I agree with the defendant that the term “wrongfully” should be struck with leave to amend from paragraph 44 of the claim, where it is used in conjunction with the loss of employment. While no damages are sought for wrongful dismissal, such an allegation is untenable in the context of the Armed Forces and will be struck out.
Conclusion
[39] In sum, except as noted, the Crown has failed to satisfy the Court, beyond doubt, of the failure of the plaintiff’s claim. For the above reasons, the defendant’s motion shall be granted in respect of the allegation of “wrongful” termination and otherwise denied. The costs of the motion shall be to the plaintiff in any event of the cause.