Miller v. Canada

Miller v. Canada
Court (s) Database
Federal Court Decisions
Date
2018-06-11
Neutral citation
2018 FC 599
File numbers
T-920-15
Decision Content
Date: 20180611
Docket: T-920-15
Citation: 2018 FC 599
Ottawa, Ontario, June 11, 2018
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
PHILIP JAMES MILLER
PLAINTIFF
and
HER MAJESTY THE QUEEN
DEFENDANT
JUDGMENT AND REASONS
I. Introduction
[1] The Defendant, Her Majesty the Queen in Right of Canada, brings this motion for an Order granting leave to amend the Amended Statement of Defence and for summary judgment to dismiss the Plaintiff’s claim as time-barred pursuant to the limitation period in s 269(1) of the National Defence Act, RSC 1985, c N-5 [NDA or the Act], or, in the alternative, the prescription period found in art 2925 of the Civil Code of Québec [CCQ].
[2] The Plaintiff’s Amended Statement of Claim was accepted for filing on May 13, 2018 immediately prior to the hearing of this motion. In that Claim, the Plaintiff seeks Special, General, Aggravated and Punitive Damages for negligence and for breach of a fiduciary duty arising from a tragic incident at Canadian Forces Base Valcartier, Québec on July 30, 1974.
[3] The Defendant acknowledges that it has a moral obligation to assist survivors of the Valcartier incident, including the Plaintiff, but submits that the action is statute barred.
[4] The Plaintiff has represented himself during the preliminary stages of the action. For the purpose of responding to the Defendant’s motion, he retained the services of a lawyer. That lawyer had not previously been solicitor of record. However, by virtue of Rule 123 of the Federal Courts Rules, SOR/98-106 and by filing and serving the Plaintiff’s Motion Record and signing the Plaintiff’s Memorandum of Fact and Law, he is deemed to be solicitor of record for the Plaintiff. On the hearing of the motion, the solicitor appeared as counsel and made oral submissions on behalf of the Plaintiff.
[5] For the reasons that follow, the Defendant’s motion is granted. This decision does not address the merits of the Plaintiff’s claim that he suffered injuries as a result of the negligence of the Defendant’s servants but whether the claim is now, as a matter of law, time-barred.
II. Background
[6] This description of the background facts and context is taken from the motion materials filed by the parties. I do not consider it necessary to describe the evidence in detail as much of it is not relevant to the issues which the Court must address on this motion. I make no findings on the evidentiary or other issues which might arise if the matter were to proceed to trial.
[7] The Valcartier incident is described in the minutes and verdict of a Coroner’s Inquest and in the report of an investigation conducted by the Ombudsman for the Department of National Defence [DND] and the Canadian Forces. The Coroner heard evidence in October 1974 and released his report and verdict on March 11, 1975. The Ombudsman’s report was released in June 2015. Both documents are in the motion record.
[8] At the time of the incident, teenage army cadets were attending a six week summer camp at Valcartier for training by regular and reserve members of the Canadian Armed Forces. This training was authorized by the Minister of National Defence. Due to inclement weather, 137 of the cadets, members of “D” Company, were in an indoor facility being instructed in the safe handling of explosive munitions. A live grenade was mistakenly included in a box of inert or “dummy” ordinance that the cadets were permitted to handle. The pin on the live grenade was pulled by one of the cadets and it exploded. Six cadets died and sixty-five others were immediately injured. The injured were transported to the base hospital and local civilian facilities for treatment. The Plaintiff was not listed among the injured, did not receive medical treatment and was not hospitalized.
[9] Following the incident, the Canadian Forces held a Board of Inquiry, the Military Police and the Sûreté du Québec conducted a joint investigation, and the Québec Coroner’s Office convened an inquest. The Military Board of Inquiry heard testimony from cadets and others who were present. The cadets were instructed to not divulge or discuss their testimony with anyone. The Board concluded that none of the cadets were to blame. Its report was classified as confidential.
[10] The Quebec Coroner found that the death of the 6 cadets was attributable to the negligence of the Regular Forces officer conducting the training session. The officer was charged with criminal negligence causing death. He was acquitted at trial on June 21, 1977.
[11] DND paid the funeral expenses for the six cadets who were killed. Immediate medical care was provided to the injured through the base hospital and local provincial facilities. But, the Ombudsman found, no mechanisms were put in place for cadets to access any additional medical or psychological care that they may have required and which may not have been available through their provincial coverage. With the exception of the immediate care received at the time of the incident, the cadets were not assisted nor were they compensated under any DND policies or regulations in effect at the time. Although the Act gave the Canadian Forces control and supervision over cadet organizations and the cadets received a small stipend for their attendance at the camp, they had no status other than as civilians on Crown land. As a result, they were ineligible for any form of compensation or benefits available to serving members of the Forces.
[12] The Ombudsman considered that the manner in which the cadets were interrogated by the Military Board of Inquiry had left many of the younger cadets feeling responsible, distraught and further traumatized.
[13] The lack of processes or mechanisms for recourse led to 14 legal actions against DND by or on behalf of dead and injured cadets. According to the record, none of the actions went to trial: they were resolved by out-of-court settlements and ex gratia compensation payments for injuries ranging from psychological harm to death.
[14] The Ombudsman noted that some of the Canadian Forces members who were present at the time of the incident, or who were among the first responders, had received treatment, benefits or compensation for physical and psychological injuries due to their military status. Some of the cadets had later received treatment for Post-Traumatic Stress Disorder [PTSD] as a result of their subsequent status as members of the Canadian Forces or the Royal Canadian Mounted Police.
[15] As former members of “D” Company reconnected in later life and shared their stories, they came to learn that some individuals had been assessed and treated for mental health issues under the programs available to Forces or RCMP members. Most were not eligible for such programs as they had not later joined the military or the RCMP. When they learned of this, 51 of the former cadets submitted complaints to the Ombudsman. Some of the complainants had independently sought the assistance of mental health care therapists. Through interviews with 49 former cadets, including the Plaintiff, the Ombudsman’s investigators learned that 33 of them believed that they continued to be affected by the 1974 incident and continued to suffer from some form of psychological trauma. And they were aware that former cadet colleagues who were eligible as veterans of the Forces or of the RCMP had access to benefits not covered by provincial healthcare plans.
[16] The Ombudsman recommended that DND immediately offer assessments to all those who claimed to have been adversely or permanently affected by the incident to determine the physical and psychological care required and, based on those assessments, to fund a reasonable care plan and provide immediate and reasonable financial compensation.
[17] The Plaintiff was a 15 year old boy from the West Island area of Montreal at the time of the incident. In his affidavit filed in response to the Defendant’s motion, he describes himself as doing well in high school sports and academic programs with plans to continue on to university. He was considered to be of high intelligence with strong aptitudes in mathematics and mechanical sciences.
[18] The Plaintiff was cross-examined on his affidavit for both the motion and, by agreement, for discovery in the action.
[19] The Plaintiff’s evidence is that the 1974 incident had a profound effect on his life, changed his behavior and limited his ability to obtain post-secondary education or to maintain meaningful and stable employment. He understands that he suffered concussive shock when the grenade exploded. His ears rang loudly following the explosion and a ringing in his ears has persisted to this day. He suffered from constant nightmares of the event. The only medical help he was offered by DND during the remaining three weeks of the camp was a prescribed narcotic; to help him sleep. During those weeks, he was interrogated by military personnel about the cause of the explosion. Two of those interrogations took place in an underground bunker. It appears from the Ombudsman’s Report that the bunker was chosen because of its size and coolness in the heat of the summer. But the atmosphere no doubt had an intimidating effect on the young cadets. They were also repeatedly warned not to speak to anyone outside the military about what had happened.
[20] After his return home, the Plaintiff says that he stopped playing sports and his performance at school deteriorated. His parents attempted to obtain help for him through provincial social services but he refused to cooperate with the aid workers. He engaged in behaviour that brought him into conflict with the law. The Plaintiff’s parents are now deceased, he is estranged from his siblings and he has no school records or other contemporary documents that relate to his deteriorating performance or involvement with social services.
[21] As time passed, the Plaintiff says that he managed to suppress the memories of the 1974 incident until 2005 when he started to believe “that something horrible had happened to [him] and it was likely at CFB Valcartier”. He vaguely recalled the incident and started looking for answers. Through an online source he met up with others who were present at the time of the incident and began to communicate with them. He attended a reunion meeting at CFB Valcartier in the summer of 2008.
[22] In 2011, the Plaintiff was interviewed by a La Presse reporter for a book about the 1974 incident. In that interview, the Plaintiff explained how the incident changed his life and that he had never received support. In the same year, the Plaintiff discussed obtaining compensation from DND with other former cadets who had been present at the time of the incident.
[23] In June 2013, the Plaintiff was subject to a comprehensive vocational evaluation as part of the process of settling an action relating to a 2011 motorcycle accident. The Plaintiff reported to the evaluator that he was “seeing a psychologist for symptoms of [PTSD] arising from a reported traumatic event occurring in 1974.” He did not describe the nature of the traumatic event but told the evaluator that it was why he did not pursue post-secondary education.
[24] From mid-2012 to mid-2014, the Plaintiff met with Dr. Richard Kaley, a psychologist. Dr. Kaley conducted a series of clinical tests intended to ascertain the full scope of the Plaintiff’s mental health problems and to produce a report for the possible purposes of litigation. The Plaintiff attended support groups for persons suffering from PTSD on Dr. Kaley’s recommendation. He and Dr. Kaley visited Valcartier in May 2014. Dr. Kaley sought funding from DND and Veterans Affairs without success. On July 30, 2014, the Plaintiff was interviewed for a documentary on PTSD and the Valcartier incident and also by investigators from the Ombudsman’s office.
[25] On June 3, 2015, the Plaintiff filed a notice of civil claim for the underlying action.
[26] On July 28, 2016, the Minister of National Defence, the Honourable Harjit S. Sajjan and the Vice Chief of the Defence Staff, Lieutenant-General Guy R. Thibault issued a joint statement expressing apologies for the pain and suffering the survivors of the Valcartier grenade incident had experienced. The statement acknowledged that some victims had kept silent since the incident after being instructed to do so by military personnel. The statement encouraged all those who have been affected by this event to discuss the circumstances and its after-effects on their lives without restriction. It ended with this paragraph:
Your well-being has had our close attention, and that of our senior leaders, for many months. Please know that we remain focused on ensuring that the health care needs of the victims of this tragedy are met, and that they receive the recognition they deserve for their pain and suffering.
[27] In November, 2016, Dr. Kaley proposed a comprehensive treatment plan for the Plaintiff and other survivors of the Valcartier incident which required funding. According to the Defendant’s Motion Record, DND has introduced a program to provide financial recognition and health care support to the former cadets who were present when the grenade exploded. The Defendant asserts in its Memorandum of Fact and Law that the Plaintiff has access to this program.
[28] On June 16, 2017, the Plaintiff met with Dr. Iris Jackson for the purposes of preparing an Independent Psychological Evaluation for the purposes of this litigation. The Plaintiff told Dr. Jackson that he started to deal with the Valcartier incident of 1974 “eight years ago”.
III. Issues
[29] As noted above, in addition to the motion for summary judgment, the Defendant seeks leave to amend its Statement of Defence. Having considered the parties’ written and oral submissions, I would describe the issues as follows:
Should the Court allow the Defendant to amend their statement of defence?
Can this Court consider the prescription of an action on a motion for summary judgment?
Is the action time-barred pursuant to s 269(1) of the NDA?
i. Can the Plaintiff rely on the “continuance of injury or damage” to bar the application of s 269(1)?
ii. Does a cadet training exercise and a Canadian Forces Board of Inquiry fall within “an act done in pursuance or execution or intended execution of this Act” pursuant to s 269(1) of the NDA?
iii. Do the words “any person” in s 269(1) apply to the Defendant Crown?
iv. Does the discoverability rule apply to s 269(1) and if so, when was the plaintiff’s claim reasonably discoverable?
[30] In view of the conclusion that I have reached on the application of s 269(1), I do not consider it necessary to consider whether the prescription periods in the CCQ apply. Had I reached another conclusion relating to s 269(1), I would have found that the question of whether the CCQ applied would have to be determined at trial based on a more complete evidentiary record given the different prescription periods and the number of exceptions that are provided for in the CCQ.
IV. Relevant Legislation
[31] The relevant provision of the Federal Courts Act, RSC 1985, c F-7, is found below:
Prescription and limitation on proceedings
Prescription — Fait survenu dans une province
39 (1) Except as expressly provided by any other Act, the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings in the Federal Court of Appeal or the Federal Court in respect of any cause of action arising in that province.
39 (1) Sauf disposition contraire d’une autre loi, les règles de droit en matière de prescription qui, dans une province, régissent les rapports entre particuliers s’appliquent à toute instance devant la Cour d’appel fédérale ou la Cour fédérale dont le fait générateur est survenu dans cette province
[…]
[…]
[32] The relevant provisions of the Crown Liability and Proceedings Act, are as follows:
Liability
Responsabilité
3 The Crown is liable for the damages for which, if it were a person, it would be liable
3 En matière de responsabilité, l’État est assimilé à une personne pour :
(a) in the Province of Quebec, in respect of
a) dans la province de Québec
(i) the damage caused by the fault of a servant of the Crown, or
(i) le dommage causé par la faute de ses préposés,
(ii) the damage resulting from the act of a thing in the custody of or owned by the Crown or by the fault of the Crown as custodian or owner; and
(ii) le dommage causé par le fait des biens qu’il a sous sa garde ou dont il est propriétaire ou par sa faute à l’un ou l’autre de ces titres;
[…]
[…]
Defences
Moyens de défense
24 In any proceedings against the Crown, the Crown may raise
24 Dans des poursuites exercées contre lui, l’État peut faire valoir tout moyen de défense qui pourrait être invoqué :
(a) any defence that would be available if the proceedings were a suit or an action between persons in a competent court; and
a) devant un tribunal compétent dans une instance entre personnes;
(b) any defence that would be available if the proceedings were by way of statement of claim in the Federal Court.
b) devant la Cour fédérale dans le cadre d’une demande introductive.
[33] The relevant provisions of the Federal Courts Rules, SOR/98-106, are found below:
Amendments with leave
Modifications avec autorisation
75 (1) Subject to subsection (2) and rule 76, the Court may, on motion, at any time, allow a party to amend a document, on such terms as will protect the rights of all parties.
75 (1) Sous réserve du paragraphe (2) et de la règle 76, la Cour peut à tout moment, sur requête, autoriser une partie à modifier un document, aux conditions qui permettent de protéger les droits de toutes les parties.
Limitations
Conditions
(2) No amendment shall be allowed under subsection (1) during or after a hearing unless
(2) L’autorisation visée au paragraphe (1) ne peut être accordée pendant ou après une audience que si, selon le cas :
(a) the purpose is to make the document accord with the issues at the hearing;
a) l’objet de la modification est de faire concorder le document avec les questions en litige à l’audience;
(b) a new hearing is ordered; or
b) une nouvelle audience est ordonnée;
(c) the other parties are given an opportunity for any preparation necessary to meet any new or amended allegations.
c) les autres parties se voient accorder l’occasion de prendre les mesures préparatoires nécessaires pour donner suite aux prétentions nouvelles ou révisées.
Leave to amend
Autorisation de modifier
76 With leave of the Court, an amendment may be made
76 Un document peut être modifié pour l’un des motifs suivants avec l’autorisation de la Cour, sauf lorsqu’il en résulterait un préjudice à une partie qui ne pourrait être réparé au moyen de dépens ou par un ajournement :
(a) to correct the name of a party, if the Court is satisfied that the mistake sought to be corrected was not such as to cause a reasonable doubt as to the identity of the party, or
a) corriger le nom d’une partie, si la Cour est convaincue qu’il s’agit d’une erreur qui ne jette pas un doute raisonnable sur l’identité de la partie;
(b) to alter the capacity in which a party is bringing a proceeding, if the party could have commenced the proceeding in its altered capacity at the date of commencement of the proceeding, unless to do so would result in prejudice to a party that would not be compensable by costs or an adjournment.
b) changer la qualité en laquelle la partie introduit l’instance, dans le cas où elle aurait pu introduire l’instance en cette nouvelle qualité à la date du début de celle-ci.
Motion by a party
Requête d’une partie
213 (1) A party may bring a motion for summary judgment or summary trial on all or some of the issues raised in the pleadings at any time after the defendant has filed a defence but before the time and place for trial have been fixed.
213 (1) Une partie peut présenter une requête en jugement sommaire ou en procès sommaire à l’égard de toutes ou d’une partie des questions que soulèvent les actes de procédure. Le cas échéant, elle la présente après le dépôt de la défense du défendeur et avant que les heure, date et lieu de l’instruction soient fixés.
[…]
[…]
Facts and evidence required
Faits et éléments de preuve nécessaires
214 A response to a motion for summary judgment shall not rely on what might be adduced as evidence at a later stage in the proceedings. It must set out specific facts and adduce the evidence showing that there is a genuine issue for trial.
214 La réponse à une requête en jugement sommaire ne peut être fondée sur un élément qui pourrait être produit ultérieurement en preuve dans l’instance. Elle doit énoncer les faits précis et produire les éléments de preuve démontrant l’existence d’une véritable question litigieuse.
If no genuine issue for trial
Absence de véritable question litigieuse
215 (1) If on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.
215 (1) Si, par suite d’une requête en jugement sommaire, la Cour est convaincue qu’il n’existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence
Genuine issue of amount or question of law
Somme d’argent ou point de droit
(2) If the Court is satisfied that the only genuine issue is
(2) Si la Cour est convaincue que la seule véritable question litigieuse est :
(a) the amount to which the moving party is entitled, the Court may order a trial of that issue or grant summary judgment with a reference under rule 153 to determine the amount; or
a) la somme à laquelle le requérant a droit, elle peut ordonner l’instruction de cette question ou rendre un jugement sommaire assorti d’un renvoi pour détermination de la somme conformément à la règle 153;
(b) a question of law, the Court may determine the question and grant summary judgment accordingly.
b) un point de droit, elle peut statuer sur celui-ci et rendre un jugement sommaire en conséquence.
Powers of Court
Pouvoirs de la Cour
(3) If the Court is satisfied that there is a genuine issue of fact or law for trial with respect to a claim or a defence, the Court may
(3) Si la Cour est convaincue qu’il existe une véritable question de fait ou de droit litigieuse à l’égard d’une déclaration ou d’une défense, elle peut :
(a) nevertheless determine that issue by way of summary trial and make any order necessary for the conduct of the summary trial; or
a) néanmoins trancher cette question par voie de procès sommaire et rendre toute ordonnance nécessaire pour le déroulement de ce procès;
(b) dismiss the motion in whole or in part and order that the action, or the issues in the action not disposed of by summary judgment, proceed to trial or that the action be conducted as a specially managed proceeding.
b) rejeter la requête en tout ou en partie et ordonner que l’action ou toute question litigieuse non tranchée par jugement sommaire soit instruite ou que l’action se poursuive à titre d’instance à gestion spéciale.
[34] The relevant provisions of the NDA are as follows:
Boards of Inquiry
Commissions d’enquête
Convening boards
Mises sur pied
45 (1) The Minister, and such other authorities as the Minister may prescribe or appoint for that purpose, may, where it is expedient that the Minister or any such other authority should be informed on any matter connected with the government, discipline, administration or functions of the Canadian Forces or affecting any officer or non-commissioned member, convene a board of inquiry for the purpose of investigating and reporting on that matter.
45 (1) Le ministre, de même que toute autre autorité nommée ou désignée par lui à cette fin, peut, dans les cas où il lui importe d’être renseigné sur toute question relative à la direction, la discipline, l’administration ou aux fonctions des Forces canadiennes ou concernant un officier ou militaire du rang quelconque, charger une commission d’enquête d’examiner la question et d’en faire rapport.
Powers
Pouvoirs de la commission d’enquête
(2) A board of inquiry has, in relation to the matter before it, power
(2) La commission d’enquête dispose, relativement à la question dont elle est saisie, des pouvoirs suivants :
(a) to summon any person before the board and compel the person to give oral or written evidence on oath and to produce any documents and things under the person’s control that it considers necessary for the full investigation and consideration of that matter;
a) assigner des témoins, les contraindre à témoigner sous serment, oralement ou par écrit, et à produire les documents et pièces sous leur responsabilité et qu’elle estime nécessaires à une enquête et étude complètes;
(b) to administer oaths;
b) faire prêter serment;
(c) to receive and accept, on oath or by affidavit or otherwise, any evidence and other information the board sees fit, whether or not the evidence or information is or would be admissible in a court of law; and
c) recevoir et accepter les éléments de preuve et renseignements, fournis sous serment, sous forme d’affidavit ou par tout autre moyen, qu’elle estime indiqués, qu’ils soient ou non recevables devant un tribunal;
(d) to examine any record and make any inquiry that the board considers necessary.
d) procéder à l’examen des dossiers ou registres et aux enquêtes qu’elle juge nécessaires.
Access to on board recordings
Précision
(3) For greater certainty, a board of inquiry may have access to an on-board recording, as defined in subsection 22(1) of the Aeronautics Act, only if it is made available under that Act.
(3) Il est entendu que la commission d’enquête n’a accès aux enregistrements de bord au sens du paragraphe 22(1) de la Loi sur l’aéronautique que s’ils sont mis à sa disposition au titre de cette loi.
Cadet Organizations
Organisations de cadets
Formation
Constitution
46 (1) The Minister may authorize the formation of cadet organizations under the control and supervision of the Canadian Forces to consist of persons of not less than twelve years of age who have not attained the age of nineteen years.
46 (1) Le ministre peut autoriser la constitution, sous l’autorité et la surveillance des Forces canadiennes, d’organisations de cadets dont l’âge se situe entre douze et dix-neuf ans.
Training, administration, provision and command
Instruction, administration et approvisionnement
(2) The cadet organizations referred to in subsection (1) shall be trained for such periods, administered in such manner and provided with materiel and accommodation under such conditions, and shall be subject to the authority and command of such officers, as the Minister may direct.
(2) Le ministre peut fixer les périodes d’instruction des organisations de cadets, la manière dont elles sont administrées, les conditions auxquelles matériels et logement leur sont fournis, et désigner les officiers sous l’autorité et le commandement desquels elles sont placées.
Not part of Canadian Forces
Exclusion des Forces canadiennes
(3) The cadet organizations referred to in subsection (1) are not comprised in the Canadian Forces.
(3) Les organisations de cadets ne font pas partie des Forces canadiennes.
Limitation period
Prescription
269 (1) No action, prosecution or other proceeding lies against any person for an act done in pursuance or execution or intended execution of this Act or any regulations or military or departmental duty or authority, or in respect of any alleged neglect or default in the execution of this Act, regulations or any such duty or authority, unless it is commenced within six months after the act, neglect or default complained of or, in the case of continuance of injury or damage, within six months after the ceasing thereof.
269 (1) Les actions pour un acte accompli en exécution — ou en vue de l’application — de la présente loi, de ses règlements, ou de toute fonction ou autorité militaire ou ministérielle, ou pour une prétendue négligence ou faute à cet égard, se prescrivent par six mois à compter de l’acte, la négligence ou la faute en question ou, dans le cas d’un préjudice ou dommage, par six mois à compter de sa cessation.
[…]
[…]
V. Analysis
A. Should this Court allow the Defendant to amend its Statement of Defence?
[35] The Defendant seeks leave to amend its Statement of Defence pursuant to Rule 75 of the Federal Courts Rules. The amendment would permit the Defendant to argue that the limitation period found at s 269(1) of the NDA bars the Plaintiff’s action. The Defendant argues that this does not result in an injustice to the Plaintiff since the proposed amendment was provided to the Plaintiff more than four months before the hearing of this motion. In addition, it does not require additional discoveries or fact-finding, and will not result in a delay. The Defendant contends that the amendment is necessary to determine a real question in controversy between the parties, and thus should be allowed.
[36] The Plaintiff submits that the limitation period in the NDA was well known to the Defendant and that they did not attempt to plead it until now. This matter proceeded for almost two years under a different limitation period in a different statute. Hence, in the Plaintiff’s view, he is prejudiced due to the delay. Moreover, he submits, raising another limitation period at this stage is an abuse of Rule 75. The Plaintiff cites in support of his position Valentino Gennarini SRL v Andromeda Navigation Inc, 2003 FCT 567 at paras 29-34, 122 ACWS (3d) 857 [Valentino].
[37] As Rouleau J stated in Valentino at paragraph 29, this Court has consistently held that as a general rule, an amendment should be allowed for the purpose of determining the real question in controversy between the parties provided that it would not result in an injustice to the other party not capable of being compensated by an award of costs and that it would serve the interests of justice: Canderel Ltd v Canada, [1993] FCJ No 777, 157 NR 380, [1994] 1 FC 3 (FCA) [Canderel]. Justice Rouleau further stated:
“[…] Factors relevant to the assessment of whether an amendment would cause prejudice to the other party that cannot be compensated by an award of costs include the timeliness of the motion to amend, the extent to which the amendment would delay an expeditious trial, the extent to which the original position caused another party to follow a course which is not easily altered, and whether the amendment facilitates the Court's consideration of the merits of the action: Scannar Industries Inc. et al. v. Canada (Minister of National Revenue) (1994), 172 NR 313 (FCA), 49 ACWS (3d) 245.”
[38] The amendment in Valentino was refused as the motion had been brought one day before the scheduled trial dates and could have been filed many months earlier. The amendment was not sought to particularize points in controversy but rather to introduce a distinct and entirely new cause of defence. Further, the proposed amendment would inevitably have delayed the trial and caused prejudice to the Plaintiff that could not be compensated for by an award of costs.
[39] In this matter, the action was filed on June 2, 2015 and the original Statement of Defence was filed on July 2, 2015 and an amended version was filed on December 18, 2015. While no mention was made of s 269(1) of the NDA in either version, the Statement of Defence and Amended Statement of Defence both alleged that the action was time-barred. The Defendant’s intent to rely on the NDA limitation period was first raised during case management proceedings in November 2017. This motion was then filed on January 4, 2018. The case is not ready to be set down for trial and the amendment would not delay an expeditious trial. The limitation period is a question of law that would have to be addressed before the Defendant Crown could be held liable.
[40] I do not accept that the Plaintiff was prejudiced by the approach the Defendant initially took to the limitation issue. He was aware that the timeliness of his complaint would be an issue at trial from the outset. He could not have assumed prior to filing his claim that the Defendant would initially rely only on the provincial limitation period. The motion for summary judgment could have been brought solely on that basis given the facts pleaded and the evidence in the public record of when the Plaintiff became aware of the harm caused by the Valcartier incident. The Plaintiff was not led to follow a course of action in preparation for trial that could not be easily altered. He had to be prepared to address the limitation period issue, albeit under the Quebec Code rather than the NDA. This is not a case such as Valentino, where the motion to amend was brought on the opening day of the trial. Or Canderel, where it was made on the fifth day of the hearing.
[41] This case is analogous to Kochems v Canada, 2008 FC 960, 169 ACWS (3d) 124, wherein Justice Snider allowed the defendant to amend their Statement of Defence and to add a statute of limitation as a ground of defence, since the facts supporting the ground were already included in the pleadings. At paragraph 13, she observed that the Plaintiff presented no principled reason for rejecting the request. The sole basis for objection was the fact that it was made six months after the Statement of Defence had been filed. While timeliness is a relevant factor, Justice Snider noted, it was not determinative. I am of the same view in this matter.
[42] In the circumstances, including the facts that the action has been brought more than forty years after the event, that much of the evidence relating to the effects of the incident on the Plaintiff is no longer in existence, and that timeliness was pleaded in defence from the outset, I consider that it would serve the interests of justice to allow the amendment.
B. Can this Court consider the prescription of an action on a motion for summary judgment?
[43] The Plaintiff argues that limitation period arguments should only be brought at the summary judgment stage on claims that can be characterized as “borderline frivolous, weak or unquantifiable.” He cites, as an example of such a claim, Awan v Canada (Attorney General), 2010 BCSC 942, [2010] BCWLD 8301, a case of an army cadet injured while demonstrating a game during field training. The claim in Awan was dismissed at trial on two grounds: the NDA prescription period and the failure to prove negligence. I can find no support in the decision for the proposition that the NDA prescription period applied only because the claim was not particularly serious.
[44] The Plaintiff contends that “no Canadian court in modern times has dismissed a serious case against the Crown with serious damages of this kind, due to a limitation period argument raised on a summary judgment motion.” He argues that any factual or legal doubt concerning a limitation period should be referred to the trial judge, as limitation periods deserve strict interpretation against the party invoking them and attempting to extinguish another’s rights: Berardinelli v Ontario Housing Corp, [1979] 1 SCR 275 at 280, 90 DLR (3d) 481.
[45] Such a finding was made in Huska v Canada, 2003 ABQB 278, [2003] 8 WWR 582. Huska concerned a traffic accident involving a member of the Canadian Armed Forces operating a motor vehicle owned by the military. The Crown applied for summary judgment alleging that the action was time barred pursuant to s 269(1). The Alberta Court of Queen’s Bench held that there was a triable issue on the question of whether the duties which the employee was performing at the time of the accident fell within the scope of s 269(1) or were of a private or subordinate nature. The evidence before the Court on that question was ambiguous. In my view, Huska is of little assistance in determining the issues on this motion. There is no ambiguity in the record in the present matter that the officers who were conducting cadet training at Valcartier in 1974 were acting within the scope of their military duties.
[46] The Defendant argues that there is no reason not to apply s 269(1) in a motion for summary judgment. Section 269(1) has survived constitutional challenge and been applied in granting summary relief: Patterson Estate v Storry, 2002 ABQB 127, [2002] 6 WWR 183 [Patterson]; Scaglione v. McLean (1998), 1998 CanLII 14667 (ON SC), 38 O.R. (3rd) 464 (Gen Div)).
[47] A party may bring a motion for summary judgment pursuant to Rule 213(1) of the Federal Courts Rules. A party responding to the motion must set out specific facts and adduce the evidence showing that there is a genuine issue for trial; Rule 214. The Court shall grant summary judgment where it is satisfied that there is no genuine issue for trial: Rule 215(1). The burden rests with the party presenting the motion but both parties must put their best foot forward: MacNeil Estate v Canada (Department of Indian and Northern Affairs), (2004), 2004 FCA 50, 316 NR 349.
[48] The general principles governing summary judgment in the Federal Court were laid out by Justice Tremblay-Lamer in Granville Shipping Co v Pegasus Lines Ltd SA (1996), [1996] 2 FC 853, [1996] FCJ No 48:
“1. the purpose of the provisions is to allow the Court to summarily dispense with cases which ought not to proceed to trial because there is no genuine issue to be tried (Old Fish Market Restaurants v. 1000357 Ontario Inc. et al, [1994] F.C.J. No. 1631, 58 C.P.R. (3d) 221 (TD));
2. there is no determinative test (Feoso Oil Limited v. Sarla) but Stone J. A. seems to have adopted the reasons of Henry J. in Pizza Pizza Ltd. v. Gillespie (Pizza Pizza). It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial;
3. each case should be interpreted in reference to its own contextual framework (Blyth and Feoso);
4. provincial practice rules (especially Rule 20 of the Ontario Rules) can aid in interpretation (Feoso and Collie);
5. this Court may determine questions of fact and law on the motion for summary judgment if this can be done on the material before the Court (this is broader than Rule 20 of the Ontario Rules of Civil Procedure) (Patrick);
6. on the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so (Pallman and Sears);
7. in the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross-examined before the trial judge (Forde and Sears). The mere existence of apparent conflict in the evidence does not preclude summary judgment; the court should take a "hard look" at the merits and decide if there are issues of credibility to be resolved (Stokes).”
See also Garford Pty Ltd. v. Dywidag Systems International, Canada, Ltd., 2010 FC 996 at para 2
[49] In Baron v R, [2000] FCJ No 263 (Fed TD), 95 ACWS (3d) 655 [Baron (FC)], the plaintiff alleged negligence, wrongful arrest and detention and intentional interference with economic relations, in addition to claims pursuant to the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. The complaints arose from actions of the Military Police against the plaintiff, a member of the Armed Forces, in relation to incidents that occurred in 2015. He launched his action beyond the six months contemplated by s 269(1) of the NDA. The defendant sought summary judgment under the former Rule 215 of the Federal Court Rules, 1998, arguing that the action was time barred. The motion was granted with respect to the tort claims but allowed to proceed to tri