T-2661-86
Byron Lance Olmstead (Plaintiff)
v.
Her Majesty the Queen in Right of Canada
(Defendant)
INDEXED AS: OLMSTEAD V. CANADA (T.D.)
Trial Division, Collier J.—Vancouver, January 11,
1988; Ottawa, April 3, 1990.
Armed forces — Queen's Regulations and Orders imposing
mandatory retirement age — Motion to strike statement of
claim seeking declaration constitutionally invalid — National
Defence Act providing aggrieved members right of redress
from superiors — Reasonable cause of action disclosed —
Common law principle Crown not having contractual obliga
tion to members of Armed Forces not derogating from
supremacy of Charter — Entry of profession not involving
implied agreement to submit to all rules governing body
adopts.
Constitutional law — Charter of Rights — Equality rights
— Armed Forces officer seeking declaration Queen's Regula
tions and Orders imposing mandatory retirement age contrary
to Charter, s. 15 — Reasonable cause of action — Constitu
tion supreme law of Canada — Every legislative enactment
subject to judicial scrutiny to determine whether Charter
requirements met.
Federal Court jurisdiction — Trial Division — Court's
jurisdiction to grant declaration not ousted by provision of
specific remedy (grievance procedure) in National Defence Act
— Constitutional issue beyond jurisdiction of statutory
adjudicative machinery which Forces member would normally
use for redress of grievance — Declaration of constitutional
validity available only from Court.
Judicial review — Equitable remedies — Declarations —
Although specific remedy—right of redress from superior
authority provided to aggrieved personnel by National
Defence Act, s. 29, Forces member seeking declaration provi
sion in Queen's Orders and Regulations constitutionally inval
id — Court's jurisdiction not ousted by existence of adminis
trative remedy.
This was a motion to strike a statement of claim for failure to
disclose a cause of action and abuse of process. The plaintiff, an
Armed Forces Major, seeks a declaration that the imposition,
in the Queen's Regulations and Orders, of a mandatory retire
ment age, is constitutionally invalid as in contravention of
Charter, section 15 (prohibiting discrimination based on age)
and that a proper interpretation thereof does not require the
plaintiff to retire at age 47. The National Defence Act, section
29, provides that every officer who considers himself aggrieved
may seek redress from superior authorities. The issues were:
whether the plaintiff can seek relief in the Federal Court when
a specific remedy is prescribed in the National Defence Act;
whether the grievance procedure is an adequate alternative
remedy; whether the courts can interfere in relations between
the Crown and the military; whether Charter, section 15
applies where a person voluntarily enrolls in the military,
knowing that the Crown is not subject to any contractual
obligation.
Held, the motion should be dismissed.
There is no hard and fast rule requiring a person to exhaust
an administrative remedy or a statutory right of appeal, unless
the legislation makes it plain that it is intended to be the
exclusive method of reviewing the decision of the inferior body.
The value of a declaratory judgment and the necessity for
making it available to aggrieved citizens is recognized at
common law. Although the declaratory judgment is a discre
tionary remedy, the Court's jurisdiction to entertain an action
for such relief is not ousted by the existence of administrative
remedies which the aggrieved party has failed to exhaust.
The statement of claim discloses a reasonable cause of
action. Constitution Act, 1982, section 52 provides that the
Constitution is the supreme law of the country. All legislative
enactments are required to conform with the Constitution Act,
1982 and the Canadian Charter of Rights and Freedoms.
Every legislative enactment, including the National Defence
Act and the Queen's Regulations and Orders may be subjected
to judicial scrutiny to ensure that Charter requirements have
been met.
A question of constitutionality cannot be immunized from
judicial review by denying those persons subject to the legisla
tion the right to challenge it. The common law principle that
the Crown has no contractual obligation to members of the
Armed Forces does not derogate from the supremacy of the
Charter. The voluntary assumption of a profession does not
mean that one impliedly agrees to become subjected, without
question, to all the rules which the governing body of that
profession might choose to enact. An individual who voluntarily
enters a profession does not automatically forfeit his Charter
rights. Every person in Canada is guaranteed the equality
provisions of section 15. Section 15 may be applicable to the
facts of this case. The issue of whether Charter, section 1 saves
the impugned provision of the Queen's Regulations and Orders
requires judicial determination.
A declaration as to the constitutional validity of the legisla
tion is available only from this Court. The constitutional issue
falls outside the jurisdiction of the statutory adjudicative ma
chinery to which a military officer would normally resort for
redress of a grievance.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], s. 15.
Canadian Human Rights Act, S.C. 1976-77, c. 33.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No.
44], s. 52.
Federal Court Rules, C.R.C., c. 663, R. 419.
National Defence Act, R.S.C. 1970, c. N-4, s. 29 (as am.
by S.C. 1985, c. 26, s. 48.1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Pringle et al. v. Fraser, [1972] S.C.R. 821; (1972), 26
D.L.R. (3d) 28; Solosky v. The Queen, [1980] 1 S.C.R.;
(1979), 30 N.R. 380; Pyx Granite Co. Ltd. v. Ministry of
Housing and Local Government, [1958] 1 Q.B. 554
(C.A.); Dickson v. Pharmaceutical Society of Great
Britain, [1970] A.C. 403 (H.L.); Mclntire v. University
of Man., [1980] 6 W.W.R. 440 (Man. Q.B.); affd [1981]
1 W.W.R. 696 (Man. C.A.).
DISTINGUISHED:
Sylvestre v. R., [1986] 3 F.C. 51; (1986), 30 D.L.R.
(4th) 639; 72 N.R. 245 (C.A.).
CONSIDERED:
Evans v. Canada, T-1414-86, Dubé J., judgment dated
13/4/87, not reported; Phillips v. The Queen, [1977] 1
F.C. 756 (T.D.); Harelkin v. University of Regina,
[1979] 2 S.C.R. 561; [1979] 3 W.W.R. 676; (1979), 26
N.R. 364; Gallant v. The Queen in right of Canada
(1978), 91 D.L.R. (3d) 695 (F.C.T.D.); Smith, Kline &
French Laboratories Ltd. v. Canada (Attorney General),
[1987] 2 F.C. 359; (1986), 34 D.L.R. (4th) 584; 11
C.I.P.R. 181; 12 C.P.R. (3d) 385; 27 C.R.R. 286; 78
N.R. 30 (C.A.).
COUNSEL:
Moe Sihota for plaintiff.
Paul F. Partridge for defendant.
SOLICITORS:
Moe Sihota, Victoria, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
COLLIER J.: This is a motion brought by the
defendant under Rule 419 of the Federal Court
Rules, C.R.C., c. 663, for an order striking out the
plaintiff's statement of claim on the grounds it
discloses no reasonable cause of action and is an
abuse of the process of the Court. After hearing
this matter, on January 11, 1988, I dismissed the
application. The following are my reasons for
doing so.
The facts are taken from the statement of claim.
For the purposes of this motion, they are deemed
to be true.
The plaintiff is a Major in the Canadian Armed
Forces and is currently posted at the Canadian
Forces Base in Esquimalt, British Columbia. He
joined the Royal Canadian Naval Reserve in 1958
and commenced training as a pilot in the Canadian
Forces in 1967. The plaintiff's date of birth is July
7, 1939.
According to Article l5°.17 of the Queen's Regu
lations and Orders for the Canadian Forces,
passed pursuant to the provisions of the National
Defence Act, R.S.C. 1970, c. N-4, as amended, the
mandatory retirement age for the plaintiff is 47
years of age.
On January 6, 1984 the plaintiff took the posi
tion that the Queen's Regulations and Orders, in
so far as they related to a mandatory retirement
`age of 47, were contrary to the Canadian Human
Rights Act, S.C. 1976-77, c. 33, and the Canadian
Bill of Rights, R.S.C. 1970, Appendix III. On
January 30, 1984 the plaintiff received a memoran
dum wherein he was advised that he would be
required to retire upon achieving age 47.
In August 1986, the plaintiff was informed that
his service would be extended for twelve months,
but that during the tenure of the extension of his
employment, he could be terminated upon thirty
days notice and would not be eligible for merit,
board consideration or promotion.
In his statement of claim, the plaintiff seeks a
declaration that Article 15.17 of the Queen's
Regulations and Orders for the Canadian Forces is
contrary to section 15 of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], and therefore of no force and effect; a
declaration that a proper interpretation of the
Queen's Regulations and Orders does not require
the plaintiff to retire at age 47; and general,
punitive and special damages.
For clarity, I set out here, subsection 15(1) of
the Charter:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
In this motion, the defendant argues that the
plaintiff's statement of claim should be struck on
the following grounds: this Court has no jurisdic
tion to hear the proceeding; it does not disclose a
reasonable cause of action; it is an abuse of the
process of this Court because the National
Defence Act prescribes the specific remedy to be
pursued by the plaintiff; this Court ought to refuse
the relief sought on the principle that the courts
will not interfere in the relations between the
Crown and the military and in light of the alter
nate remedy provided by the legislation; and, that
subsection 15(1) of the Charter, upon which the
plaintiff relies, has no application to the voluntary
and unilateral assumption of the rights and obliga
tions of the plaintiff pursuant to the Queen's
Regulations and Orders.
It is the defendant's position that section 29 of
the National Defence Act [as am. by S.C. 1985, c.
26, s. 48.1] confers on the plaintiff a right of
redress.
29. Except in respect of a matter that would properly be the
subject of an appeal or petition under Part IX or an application
or appeal under Part IX.I, an officer or non-commissioned
member who considers that he has suffered any personal
oppression, injustice or other ill-treatment or that he has any
other cause for grievance may as a matter of right seek redress
from such superior authorities in such manner and under such
conditions as shall be prescribed in regulations made by the
Governor in Council.
The plaintiff is entitled to seek redress according
to the grievance procedure as set out in the
Queen's Regulations and Orders 19.26 and 19.27.
These regulations establish the procedures to be
followed in submitting an application for redress of
grievance. The statute and the regulations provide
every officer with a right to seek redress in respect
of any matter of which he considers himself to be
aggrieved. An officer exercising this right is en
titled to have his complaint assessed and
adjudicated upon by the authority who may grant
the redress sought.
The defendant maintains that, where a statute
prescribes a specific remedy, that remedy is the
one that must be pursued. In making this argu
ment, the defendant relies upon the decision of this
Court in Evans v. Canada, (not reported,
F.C.T.D., T-1414-86, April 13, 1987), wherein
Dubé J. struck out the statement of claim of the
plaintiff, a civil servant, who was alleging wrongful
suspensions, demotions, abuse of power and torts
committed by his employer. His Lordship stated,
at page 3:
The jurisprudence has clearly established that, at common law,
public servants held their appointments at the pleasure of the
Crown and that their present rights of redress are conferred by
statute. When a statute prescribes a specific remedy, that
remedy is the one that must be pursued. The statutes governing
the plaintiffs employment are the Public Service Employment
Act, the Public Service Staff Relations Act, and the Financial
Administration Act. The plaintiff was entitled to grieve with
reference to his alleged grievances against the Regional Deputy
Commissioner under his collective agreement. He did not do so.
In Phillips v. The Queen, [1977] 1 F.C. 756
(T.D.), this Court struck out a statement of claim
brought by a member of the public service who
was alleging wrongful termination for incompe
tence. After referring to the applicable appeal
procedure found in the Pubic Service Employment
Act, R.S.C. 1970, c. P-32, Dubé J. stated, at
page 758:
When a statute prescribes a specific remedy, the general rule
is that no remedy can be taken but that particular remedy
prescribed by the statute. As stated by Lord Esher M.R. in R.
v. County Court Judge of Essex and Clarke ((1887) 18 Q.B.D.
704 at p. 707) "The ordinary rule of construction therefore
applies to this case, that where the legislature has passed a new
statute giving a new remedy, that remedy is the only one which
can be pursued."
The Public Service Employment Act does provide a remedy
for aggrieved public servants, namely the right to appeal. If no
appeal is made against a recommendation of the deputy head,
subsection 31(4) provides that the Commission may take such
action as it sees fit, including the release of the employee under
subsection 31(5).
The defendant maintains that, in any event, this
Court ought to refuse the relief sought by the
plaintiff because an adequate alternative remedy
for grievance and redress is provided for. In decid
ing whether an adequate alternative remedy exists,
the courts are required to consider a number of
relevant factors. That principle is made clear, the
defendant submits, by the majority decision of the
Supreme Court of Canada in Harelkin-v. Univer
sity of Regina, [19791 2 S.C.R. 561. In that case,
the appellant alleged the denial of natural justice
by an inferior committee, created pursuant to the
governing statute, and the availability of a new
hearing on appeal before a superior committee of
the University senate. Rather than pursuing his
grievance to a hearing before the superior commit
tee, the appellant sought and obtained relief by
way of mandamus and certiorari in the Court of
Queen's Bench for Saskatchewan. The decision
granting those remedies was reversed by the Court
of Appeal. In upholding the decision of the Court
of Appeal, the Supreme Court of Canada set out
the factors to be considered in deciding whether an
adequate and convenient remedy is available.
Beetz J. stated at page 588:
In order to evaluate whether appellant's right of appeal to
the senate committee constituted an adequate alternative
remedy and even a better remedy than a recourse to the courts
by way of prerogative writs, several factors should have been
taken into consideration among which the procedure on the
appeal, the composition of the senate committee, its powers and
the manner in which they were probably to be exercised by a
body which was not a professional court of appeal and was not
bound to act exactly as one nor likely to do so. Other relevant
factors include the burden of a previous finding, expeditious-
ness and costs.
The grievance and redress procedures legislated
by section 29 of the National Defence Act and
Article 19.26 of the Queen's Regulations and
Orders provide for the following:
1. an opportunity for an officer to make an oral
complaint to the commanding officer, and, if not
satisfied, an opportunity to present. his complaint
in writing to higher authorities;
2. an obligation on every person to whom a com
plaint is made, to cause such complaint to be
inquired into;
3. the ability to require the complaint to be sub
mitted to the Governor in Council;
4. the authority and obligation to afford full
redress to the complainant, if satisfied of the jus
tice of the complaint;
5. each level of the grievance is independent of the
others and unfettered by any previous finding at a
lower level.
Having regard to the factors set out by Beetz J.
in the Harelkin case, the defendant submits that
the above provisions clearly afford the plaintiff, an
adequate alternative remedy, sufficient to deny the
present relief sought by the plaintiff in his state
ment of claim.
Further, the defendant relies on the principle at
common law, of courts not interfering in relations
between the Crown and the military. The defend
ant relies on the decision in Gallant v. The Queen
in right of Canada (1978), 91 D.L.R. (3d) 695
(F.C.T.D.), wherein Marceau J. stated at pages
696-697:
Both English and Canadian Courts have always considered,
and have repeated whenever the occasion arose, that the Crown
is in no way contractually bound to the members of the Armed
Forces, that a person who joins the Forces enters into a
unilateral commitment in return for which the Queen assumes
no obligations, and that relations between the Queen and Her
military personnel, as such, in no way give rise to a remedy in
the civil Courts. This principle of common law Courts not
interfering in relations between the Crown and the military, the
existence of which was clearly and definitively confirmed in
England in the oft-cited case of Mitchell v. The Queen, [1896]
l Q.B. 121, was taken over by our Courts and repeated in a
wide variety of situations.
After concluding that the provisions of the Na
tional Defence Act had not altered this, principle,
His Lordship, in granting a motion to strike 41t ,
pursuant to Rule 419, said at page 698:
[TRANSLATION] In short, because the hiring of plaintiff in
the Armed Forces does not create any contractual obligation
whatever on the part of the Crown; because the release of
plaintiff, had it been unjustified, could not in any case be seen
as having encroached upon his rights and, because only the
appeal authorities to which plaintiff has already had recourse
can grant a remedy with respect to his grievances concerning
the way in which his commanding officer's decision was made,
this Court has no jurisdiction to hear the action as instituted,
based as it is on facts which could not give rise to the remedies
claimed.
The defendant maintains that this judicial policy
of restraint from interfering in relations between
the Crown and the military, coupled with the
legislative intent to resolve grievances and provide
redress by internal means, should lead this Court
to refuse the relief sought by the plaintiff in his
statement of claim.
Finally, the defendant argues that section 15 of
the Canadian Charter of Rights and Freedoms
cannot be invoked in the circumstances of this
case. This argument is based on the voluntary and
unilateral nature of the relationship, whereby a
member of the Armed Forces assumes the rights
and obligations of military service. The enrolment
of an individual as a member of the Armed Forces,
does not create any contractual or other obliga
tions on the Crown. The relationship is very differ
ent from the contractual relationship that exists
between a master and a servant whereby both
enjoy freedom of action. As between the Crown
and military personnel, the only obligation, that of
service, rests on the latter. In those circumstances,
section 15 of the Charter simply does not apply.
The defendant relies on the Federal Court of
Appeal decision in Smith, Kline & French
Laboratories Ltd. v. Canada (Attorney General),
[1987] 2 F.C. 359, at page 365:
Since my approach to section 15 differs substantially from
that taken by the Trial Judge, I think it appropriate that I
should set it out in some detail, even though the result is
ultimately the same. In the first place, and in the particular
context of this action, it must be said that a short answer to the
plaintiffs' section 15 attack is that, when the alleged "discrimi-
nation" results directly from a voluntarily assumed package of
rights and obligations, section 15 simply does not come into
play. A number of simple examples serve to illustrate the point.
Certain offices, professions or callings have, as a condition of
their exercise, a prohibition to carry out certain other activities
open to the citizenry at large. Section 36 of the Judges Act,
[R.S.C. 1970, c. J-1], is a case in point. Section 15 surely
cannot be invoked here for no one is ever obliged to subject
himself to the restraint imposed.
It is true, as the defendant suggests, that the
courts, in their discretion, may decline to entertain
an application for judicial review on the basis that
the administrative review or appeal is just as effec
tive as judicial review to deal with the matter
complained of. However, it is clear from the
Supreme Court of Canada decision in Pringle et
al. v. Fraser et al., [1972] S.C.R. 821, that there is
no hard and fast rule requiring a person to exhaust
administrative remedies or a statutory right of
appeal, unless a statute makes it plain that those
remedies or right of appeal are intended to be the
exclusive remedy for reviewing the decision of the
inferior body.
In administrative law, the importance of a
declaratory judgment, to resolve uncertainty and
doubts, is of paramount importance. A public au
thority may be uncertain of the scope of the
powers which it wishes to exercise, or those powers
may be disputed by another party. In such circum
stances, the dilemma resulting from the public
authority taking action at the risk of exceeding its
powers, or inaction at the risk of failing to dis
charge its responsibilities, may be solved by
obtaining the authoritative guidance of the court
by bringing a declaratory action. Of equal impor
tance, is the public benefit which ensues when an
individual, whose interests are potentially prejud
iced, is able to obtain, in advance, a judicial decla
ration of the legal position.
The value of a declaratory judgment, and the
necessity of making it available to aggrieved citi
zens, has been unquestionably recognized in
common law. In Solosky v. The Queen, [1980] 1
S.C.R. 821, the Supreme Court of Canada dealt
with the question of declaratory judgments. In that
case, a prisoner sought a declaration that his mail
should be forwarded to him unopened. Dickson J.
[as he then was], on behalf of the Court, said at
page 830:
Declaratory relief is a remedy neither constrained by form
nor bounded by substantive content, which avails persons shar
ing a legal relationship, in respect of which a 'real issue'
concerning the relative interests of each has been raised and
falls to be determined.
In the Solosky decision, the Court cited with
approval the decision of Lord Denning in Pyx
Granite Co. Ltd. v. Ministry of Housing and Local
Government, [1958] 1 . Q.B. 554 (C.A.), at
page 571:
... if a substantial question exists which one person has a real
interest to raise, and the other to oppose, then the court has a
discretion to resolve it by a declaration, which it will exercise if
there is good reason for so doing.
In Dickson v. Pharmaceutical Society of Great
Britain, [1970] A.C. 403, a case also relied upon
by the Supreme Court in Solosky, the House of
Lords stated at page 433:
A person whose freedom of action is challenged can always
come to the court to have his rights and position clarified,
subject always, of course, to the right of the court in exercise of
its judicial discretion to refuse relief in the circumstances of the
case.
Although the declaratory judgment is a discre
tionary remedy, the Court's jurisdiction to enter
tain such an action is not ousted by the existence
of other administrative remedies which the
aggrieved party has failed to exhaust. In McIntire
v. University of Man., [1980] 6 W.W.R. 440
(Man. Q.B.); affd [1981] 1 W.W.R. 696 (Man.
C.A.), the Court held that a complainant who was
forced to retire at age 65 pursuant to a collective
agreement, could apply to the court for a declara
tion that the retirement provision was in violation
of the The Human Rights Act Hof Manitoba],
S.M. 1974, c. 65. The complainant was not, in the
Court's opinion, limited to arbitration under the
collective agreement or the complaint procedures
and relief provided under The Human Rights Act.
The Court thoroughly canvassed the issue of
whether it had jurisdiction to make a declaratory
order with respect to an interpretation of The
Human Rights Act, although the complainant had
failed to exhaust an alternate remedy available to
her pursuant to that Act. Hamilton J. came to the
following conclusion at pages 448-449:
It may be conceded, without reference to authority, that this
general right of access to the courts and the right to have a
speedy interpretation of a statute or a contract may be abrogat
ed by specific legislation. If Parliament or the legislature
believes that questions between citizens should be decided in
some other way, it may so legislate. An example of that type of
legislation is the Labour Relations Act, which initially provides
for a method of settling disputes that does not involve the
courts.
The Human Rights Act provides other means whereby a
person may have his or her complaint aired but, as I have
indicated, that Act does not appear to give exclusive jurisdic
tion to the Human Rights Commission or, conversely, does not
oust the inherent common law or historic jurisdiction of the
court to receive applications and hear complaints of aggrieved
citizens. It is, nevertheless, the case, and this again, I think, can
be stated without the necessity of referring to legal authority,
that the courts are reluctant to exercise jurisdiction, even
though they may possess it, if there is an alternate or prelim
inary remedy available to the citizen. The reason for this, no
doubt, is to leave to the citizen a less technical or legal and
sometimes more expeditious and less costly means of obtaining
settlement of his grievance, without what some perceive to be
the more difficult or costly involvement of counsel and the
courts.
Accordingly, I am satisfied that this Court does
have jurisdiction to entertain the action brought by
the plaintiff by way of his statement of claim. I do
not accept the defendant's contention that this
jurisdiction is ousted by the existence of an alter
nate remedy available to the plaintiff, but, of
which he did not avail himself.
The issue of whether this Court should exercise
its discretion and grant the declaratory relief
sought by the plaintiff, is a matter for the trial
judge alone to decide, based upon the merits of the
case. But for the foregoing reasons, I refuse to
strike out the plaintiffs statement of claim on the
grounds that it is an abuse of process of this Court
or that this Court lacks jurisdiction to entertain
the action.
I turn now to the question of whether the plain
tiffs statement of claim discloses a reasonable
cause of action.
The issue raised by the plaintiff in his statement
of claim is simply this: are the provisions of the
National Defence Act and the Queen's Regula
tions and Orders passed pursuant to that Act,
which provide for a mandatory retirement age of
47 for the plaintiff, constitutionally valid.
The Constitution Act, 1982 [Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44], is the supreme law in
this country. Subsection 52(1) of the Act is
unequivocal:
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
The effect of this provision is that all legislative
enactments passed by Parliament and the legisla
tures are required to conform with the provisions
of the Constitution Act, 1982, including the
Canadian Charter of Rights and Freedoms. Every
legislative enactment may be the subject of judi
cial scrutiny, and may, at any time, be examined
to ensure that it meets the requirements and stand
ards prescribed by the Charter.
The principle, which has developed at common
law, that the Crown has no contractual or other
obligation to members of the Armed Forces, does
not reduce the supremacy of the Charter. The
National Defence Act and the Queen's Regula
tions and Orders for the Canadian Forces are not
exempted from judicial examination for the pur
pose of determining whether their provisions vio
late the Charter, and, if they do, to be declared of
no force and effect. It would indeed be alarming if
there was no way in which the constitutional valid
ity of these legislative enactments could be
brought within the scope of the judicial process.
Such a question of constitutionality simply cannot
be immunized from judicial review by denying
those persons subject to the legislation the right to
challenge it. The courts have proven themselves
tenacious to assert their jurisdiction where ques
tions of constitutional validity and statutory inter
pretation are involved.
The defendant has impressed upon this Court
the unique character of the relationship between
armed forces personnel and the Crown, which
involves the abandonment of civilian status and the
giving up of many civil rights of an ordinary
person. Based on that unique quality, this Court is
asked to find that section 15 of the Charter,
cannot be invoked by the plaintiff because he
voluntarily assumed this "armed forces" package
of rights and obligations.
I am unable to make such a finding. To do so
would, in my opinion, denigrate the whole purpose
of the Charter and would be contrary to the liberal
interpretation which that document deserves. The
defendant cannot take refuge in any kind of excep
tion or rule of immunity derived from the common
law so as to avoid giving effect to the Charter. I
am not persuaded the voluntary assumption of a
profession means that one impliedly agrees to
become subjected, without question, to all the rules
which the governing body of that profession might
choose to enact. An individual who voluntarily
enters into a profession or office does not
automatically forfeit his rights under the Charter.
Every individual in Canada is guaranteed the
equality provisions of section 15 and the defendant
has failed to provide me with any evidence that
would lead me to hold otherwise.
I distinguish the decision of the Federal Court of
Appeal in - Sylvestre v. R., [ 1986] 3 F.C. 51. In
that case, the respondent had been dismissed from
the armed forces on the ground of her admitted
homosexuality. The respondent brought an action
by way of statement of claim for an order setting
aside the dismissal and for damages. The Crown
made application to strike out the respondent's
statement of claim. The application was rejected
by the Federal Court, Trial Division, but allowed
by the Federal Court of Appeal. The distinction
between the case at bar and the Sylvestre case, is
that, in the latter, the respondent was unable to
rely on the provisions of section 15 of the Charter,
as it was not in effect on the date of her alleged
wrongful dismissal from the armed forces.
I am of the view section 15 of the Charter may
be applicable to the facts of this case. Agreed,
there are legislative enactments in effect which
have been found to violate the Charter, but which,
at the same time, have been held to fall within the
saving provisions of section 1. This perhaps may be
the case with the impugned legislative provisions in
this proceeding, but that requires a judicial
determination.
This leads me to my final point, and it relates to
my previous conclusion, that the plaintiff is not
barred from seeking his relief in this Court, even
though he has not exhausted other remedies avail
able to him. It is this: the relief which the plaintiff
seeks, a declaration as to the constitutional validity
of the impugned legislation, is only available to
him from this Court. The constitutional issue, in
my opinion, falls outside the jurisdiction of the
statutory adjudicative machinery which the plain
tiff would normally use for redress of a grievance.
Therefore, the administrative review provided for
in the Queen's Regulations and Orders is not
adequate to deal with the issue raised by the
plaintiff in his statement of claim.
Accordingly, I am satisfied that the plaintiffs
statement of claim does disclose a reasonable
cause of action. I would not strike out the plain
tiffs statement of claim or any of the grounds put
forward by the defendant.
The defendant's motion is dismissed with costs.
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