Thomas v. Canada (Attorney General)

Thomas v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-05-09
Neutral citation
2024 FC 655
File numbers
T-791-21
Decision Content
Date: 20240509
Docket: T-791-21
Citation: 2024 FC 655
Ottawa, Ontario, May 9, 2024
PRESENT: The Honourable Mr. Justice Zinn
CLASS PROCEEDING
BETWEEN:
DAN THOMAS
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA
Defendant
ORDER AND REASONS
Table of Contents
I. Introduction 2
II. Issues 4
III. Analysis 4
A. Should the Court decline to exercise jurisdiction in this proposed class proceeding? 4
(1) The internal dispute resolution schemes 8
(2) Section 9 of the Crown Liability and Proceedings Act 15
B. Should the Defendant be permitted to resile from an admission in its Memorandum? 20
C. Has the Plaintiff satisfied the five conditions for certification under Rule 334.16(1) of the Rules? 25
(1) Do the pleadings disclose a singular reasonable cause of action? 28
(a) Systemic negligence 29
(b) Breach of Fiduciary Duty 32
(c) Breach of the Charter, Civil Code, and the Québec Charter 34
(2) Is there an identifiable class of two or more persons? 37
(3) Do the claims raise common questions of law or fact? 40
(4) Is a class proceeding the preferable procedure? 43
(5) Is the Plaintiff an appropriate representative plaintiff? 47
IV. Conclusion 49
I. Introduction [1] Dan Thomas asks that his claim against the Canadian Armed Forces [CAF] be certified as a class proceeding and that he be appointed as representative plaintiff pursuant to Rule 334.16 of the Federal Courts Rules, SOR/98-106 [the Rules].
[2] Mr. Thomas seeks to represent the class members: former and current members of the CAF who experienced worsening symptoms of their mental health disorders [MHDs] during their service due to stigmatization inflicted by the CAF [Mental Illness Stigmatization]. MHDs are defined in the Plaintiff’s Statement of Claim as “conditions, diseases, or symptoms of an emotional or psychological nature which negatively affect the mind, mood, behaviour, and/or cognition, and which persist for a period of sixty days or longer.” Mental Illness Stigmatization is described by the Plaintiff in his Notice of Motion as “pejorative attitudes, behaviours, or beliefs concerning CAF Members who suffer from mental health disorders, as reflected by the internalization of negative attitudes and beliefs by sufferers of mental health disorders, by CAF policies, practices, and rules, as well as by the treatment of class members by other CAF Members, which includes discrimination, ostracization, harassment, and abuse.”
[3] Mr. Thomas seeks to certify a class action against the CAF for systemic negligence, breach of statutory and fiduciary obligations, breach of sections 7 and 15 of 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 [the Charter], and the related provisions of the Civil Code of Québec, CQLR c CCQ-1991 [Civil Code] and the Charter of Human Rights and Freedoms, CQLR c C-12 [Québec Charter], by failing to take adequate or any steps to mitigate Mental Illness Stigmatization in the CAF.
[4] The Defendant, the Crown on behalf of the CAF, opposes the certification of the proceeding as a class action. It submits that this Court lacks jurisdiction to certify the action because there are available legislative remedies within the CAF and elsewhere. Moreover, in its Memorandum of Fact and Law, it submits that the Plaintiff failed to demonstrate some basis in fact of four of the five elements of the certification test under Rule 334.16 of the Rules.
[5] As is discussed below, at the oral hearing, the Crown sought to amend its Memorandum of Fact and Law [Memorandum] to argue that the Plaintiff failed to meet all five of the elements of the certification test.
[6] The Plaintiff enrolled in the CAF at the age of 17 on September 22, 1977, and served until 1986 in the 3rd Battalion, Princess Patricia’s Canadian Light Infantry. He sustained a serious physical injury while serving in the CAF, after which he was diagnosed with a MHD. He agreed to a “3B Release” (i.e., an immediate removal from CAF due to an illness or injury) in September 1986, following his stated intent to bring forward a grievance.
II. Issues [7] These Reasons address three issues:
Should the Court decline to exercise jurisdiction in this proposed class proceeding?
Should the Defendant be permitted to resile from an admission made in its Memorandum?
Has the Plaintiff satisfied the five conditions for certification under Rule 334.16(1) of the Rules?
III. Analysis
A. Should the Court decline to exercise jurisdiction in this proposed class proceeding? [8] The parties were permitted to submit supplemental written representations related to the Court’s jurisdiction to certify this proposed class proceeding. Indeed, most of the oral hearing was devoted to these submissions.
[9] The Defendant, relying on Vaughan v Canada, 2005 SCC 11 [Vaughan] at paragraph 57, submits that the Court ought to decline jurisdiction because there are available legislative remedies within the CAF and elsewhere aimed at preventing and resolving CAF workplace disputes. In light of the rule of law, giving respect to Parliamentary supremacy, the Court should not intervene where the statutory remedies have not been exhausted, as the Defendant submits is the case here: Sandiford v Canada, 2007 FC 225 at para 26.
[10] In any event, the Defendant submits that the class members received, or could receive, a pension for the same harms pleaded in this proposed class proceeding which would bar their claims pursuant to section 9 of the Crown Liability and Proceedings Act, RSC 1985, c C-50 [the CLPA].
[11] The Plaintiff acknowledges that the Defendant may later raise these issues as defences to the claims but says that it is premature to determine such issues at certification. Citing this Court in Greenwood v Canada, 2020 FC 119 [Greenwood FC], affirmed on appeal in 2021 FCA 186 [Greenwood FCA], which certified the class proceeding where the Defendant raised similar jurisdictional challenges, the Plaintiff argues that this case presents an even more extensive record to support finding that the internal mechanisms are inadequate alternative remedies for the claims sought in the proceeding and that section 9 of the CLPA does not apply.
[12] The parties’ submissions on jurisdiction will be analyzed under the following headings: (1) the internal dispute resolution schemes; and (2) section 9 of the CLPA.
[13] Before delving into the merits of the jurisdictional arguments, I note that the Defendant raised several arguments relating to the admissibility of evidence. While evidence is not admissible in certification proceedings to establish the existence of a reasonable cause of action, it may be admitted and relied on in circumstances like these where the Court must determine whether it ought to decline jurisdiction in favour of the alternate administrative remedies: Hudson v Canada, 2022 FC 694 [Hudson] at para 79; Greenwood FCA at para 95. Evidence relating to the nature and efficacy of the suggested alternate processes is particularly crucial in the Court’s determination of jurisdiction. As the Federal Court of Appeal held in Greenwood FCA at paragraph 95, “[a] ruling on this sort of issue cannot be made in a factual vacuum.”
[14] The Defendant specifically contests the Plaintiff’s reliance on several public reports to argue that the Court should exercise its jurisdiction, namely because the internal dispute-resolution schemes are ineffective and inappropriate to deal with the harms pleaded in the statement of claim and that CAF’s processes for administrating disability benefits suffers from systemic flaws and deficiencies. These reports, attached as exhibits to Ms. Lindsay Houston’s affidavit [the Houston affidavit], include:
The September 2001 report of CAF Ombudsperson André Marin;
The December 2002 report of CAF Ombudsperson André Marin;
The September 3, 2003 report of the Right Honourable Antonio Lamer;
The December 2008 report of CAF Ombudsperson Mary McFadyen;
The May 2010 report of CAF Ombudsperson Pierre Daigle;
The December 2011 report of the Honourable Patrick LeSage;
The March 27, 2015 report of the Honourable Marie Deschamps;
The September 2018 report of Veterans Ombudsperson Guy Parent;
The September 28, 2020 report of the Parliamentary Budget Officer;
The December 2020 report of the Standing Committee on Veterans Affairs;
The April 30, 2021 report of the Honourable Morris J. Fish;
The May 2022 report of the Auditor General of Canada;
The May 20, 2022 report of the Honourable Louise Arbour [the Arbour Report];
The June 2022 report of the Standing Committee on Veterans Affairs; and
The December 12, 2022 report of the Honourable Anita Anand.
[15] The Plaintiff argues that these reports should be admissible for the truth of their contents since they are “documents in possession” of the Defendant and by virtue of the manner of their preparation as public documents: British Columbia (Securities Commission) v Branch, [1995] 2 SCR 3 at para 52; Grewal v Khalsa Credit Union, 2011 BCSC 277 at para 7. The Defendant argues that the Plaintiff failed to establish that the public documents exception to the rule against hearsay should apply such to admit the reports for the truth of their contents: Robb Estate v St. Joseph’s Health Care Centre, [1998] 31 CPC (4th) 99. Instead, the Defendant argues that the reports are admissible only to the extent that they place the facts pled into context: Bigeagle v Canada, 2021 FC 504 at paras 36–46, aff’d 2023 FCA 128 at para 44.
[16] I agree with the Plaintiff and will admit and rely on the evidence contained within the Houston affidavit, in addition to the other evidence tendered by the parties, in determining whether the Court should decline to exercise its jurisdiction in this matter. Similar reports were admitted and considered for the truth of their contents in evaluating the jurisdictional issue in Greenwood FC, affirmed in Greenwood FCA.
(1) The internal dispute resolution schemes [17] The Defendant submits that the Court should decline to exercise its jurisdiction to certify this proposed class action proceeding due to the availability of internal dispute resolution schemes and compensation by CAF that may adequately address the class members’ claims. It points to several policies, orders, instructions, and directives that demonstrate CAF’s anti-harassment stance. In great detail, it explains that CAF has multiple avenues for providing redress to compensate for wrongs committed by the CAF, including remedying those who faced harassment or discrimination on the basis of disability.
[18] These avenues include statutory grievance rights under section 29 of the National Defence Act, RSC 1985, c N-5 [the NDA], a harassment complaint process set out in the Defence Administrative Orders and Directives [DAOD] and Queens Regulations and Orders for the Canadian Forces [QR&O], and judicial review of final decisions of administrative decision-makers under section 18 of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act]. CAF members also can address complaints of discrimination and harassment, as well as retaliation for the making of any such complaints, under the Canadian Human Rights Act, RSC 1985, c H-6, through independent review and investigation by the National Defence and Canadian Forces Ombudsman or Directorate of Special Examinations and Inquiries, and through investigation of misconduct under the NDA. Most harassment complaints are resolved informally, with the assistance of CAF’s Integrated Conflict and Complaint Management program.
[19] CAF members who are aggrieved by any decision, act, or omission in the administration of the CAF’s affairs, and for which no other process for redress is provided under the NDA, are entitled to submit a grievance: NDA, s 29(1). If a grievance related to harassment is submitted before a formal harassment complaint is made, a Situational Assessment [SA] may be completed by the grievance authority. Where the SA finds that the complaint meet the criteria to proceed through the formal harassment complaint process, an investigation may be conducted by a Responsible Officer [RO], a senior military member or civilian manager outside the grievance authority. There are a range of remedial and disciplinary measures available to correct a respondent’s behaviour should the RO find that harassment occurred. If the CAF member is not satisfied with the result of the harassment investigation or the RO’s decision on the harassment complaint, or has a complaint regarding the procedure followed in the harassment investigation, he or she may submit a grievance.
[20] A grievance is initially referred to a grievor’s commanding officer or their superior who may act as the initial authority [IA] if they are able to provide the redress sought: QR&O, art 7.09. If the grievor is seeking redress which cannot be provided by the IA, or if it relates to the officer to whom it is submitted, the grievance is referred to the next superior officer responsible for the matter, who will act as the IA: QR&O, art 7.14. IA decisions may be reviewed by the Military Grievance External Review Committee [MGERC] and by a Final Authority [FA], who is the Chief of the Defence Staff [CDS] or their delegate. In some cases, including where the grievance relates to “the application or interpretation of Canadian Forces policies relating to […] harassment or racist conduct,” the MGERC is required to review them: QR&O, art 7.21. The MGERC is an independent administrative tribunal external to the CAF that reviews individual grievances and provides findings and recommendations to the CDS and the grievor. Though the MGERC’s findings and recommendations are not binding, the CDS must provide reasons if it departs from them. The MGERC also provides the CDS with systemic recommendations, such as measures to increase fairness and transparency in the grievance process.
[21] There are a range of remedies available for successful complainants including ex gratia payments of up to $100,000.
[22] The Defendant submits that the schemes described above have not been exhausted. That is, the Plaintiff and the Plaintiff’s affiants have not attempted to use the formal or informal harassment complaint process nor the grievance process to address their claims. It emphasizes that the Plaintiff bears the burden of demonstrating to the Court that it should exercise its residual discretion to assume jurisdiction. Such residual jurisdiction is to be used only in exceptional cases: Lebrasseur v Canada, 2006 FC 852 [Lebrasseur FC] at para 37, aff’d 2007 FCA 330 [Lebrasseur FCA] at paras 18-19; Moodie v Canada, 2008 FC 1233 at para 38.
[23] In support of its argument that the Court ought to defer to internal mechanisms where they are available and address the same or similar pleaded harms, especially in the context of claims involving workplace harassment or discrimination, the Defendant cites a myriad of decisions from different courts that rely on Vaughan: Lebrasseur FCA; Canada v Prentice, 2005 FCA 395; Tindall et al v Royal Canadian Mounted Police et al, 2018 ONSC 4365; Marshall v Canada, 2008 SKQB 113; Doucette v Canada (Attorney General), 2018 FC 697; Desrosiers v Canada (Attorney General), 2004 FC 1601; Galarneau v Canada (Attorney General), 2005 FC 39; Hudson; and Bisaillon v Concordia University, 2006 SCC 19.
[24] In particular, the Defendant submits that the grievance system under the NDA provides CAF members with the opportunity to seek redress for just about any issue which may arise in service, including allegations of workplace harassment and discrimination on the basis of disability. Indeed, this Court has deferred to this process on many occasions as cited above.
[25] The Defendant further acknowledges that the internal processes are marred with delays but says that these delays were or are being addressed (see the Directive for CAF Grievance System Enhancement) and, in any event, mere delay or bare allegations of inadequacies are insufficient to support a finding that the Court should not defer to the internal processes: Fortin v Canada (Attorney General), 2021 FC 1061 at para 43; Kleckner v Canada (Attorney General), 2016 FC 1206 at para 36.
[26] The Plaintiff heavily relies on this Court’s decision in Greenwood FC in submitting that the Defendant’s jurisdictional arguments cannot succeed. In Greenwood FC at paragraph 39, the Court found that it could exercise jurisdiction as the internal mechanisms within the Royal Canadian Mounted Police did not “provide a fulsome remedy, or any remedy, for the claims sought to be advanced.” The Plaintiff similarly argues that the CAF’s internal dispute resolution schemes cannot provide effective redress to the class members in this action. Indeed, the Plaintiff asserts that part of the allegations advanced in the class proceeding relate to the inadequacy of the internal dispute resolution schemes. He submits that it is circular to decline certifying the class proceeding on the basis of seeking a remedy through the Defendant’s internal schemes when those very schemes form part of the dispute. Most of the Plaintiff’s evidence against the internal processes relate to its delays and resulting backlogs.
[27] Once the Defendant satisfies the Court that there is a legislative scheme to which the Court must defer, the Plaintiff bears the burden of establishing that the Court nevertheless possesses residual jurisdiction that it ought to exercise: Lebrasseur FCA at para 19. I accept that there are internal mechanisms within the CAF which cover the harms alleged in the Statement of Claim, insofar as they relate to workplace disputes; the question for me to determine is whether the Plaintiff demonstrated that I should exercise my jurisdiction to intervene.
[28] For the same reasons as in Greenwood FC (i.e., the inadequacy of internal recourse mechanisms), I find that the Court may exercise jurisdiction to certify the class action proceeding.
[29] In Vaughan, the Supreme Court held that while courts generally should defer to any legislative schemes that exist to deal with employment-related disputes, they nonetheless retain residual jurisdiction that may be exercised where the legislated process does not provide effective redress: Vaughan at paras 18–25. Courts only lack this residual jurisdiction in exceptional circumstances where the legislative scheme ousts the Court’s jurisdiction completely: Vaughan at paras 18–25. No such strong legislative language exists here. I therefore find the Court retains residual jurisdiction to intervene in the case at bar.
[30] I acknowledge the case law the Defendant cites where this Court, and others, in its discretion declined to exercise its residual jurisdiction due to the availability of statutory internal mechanisms to adequately address workplace conflicts. I note that many of these cases were those advanced in Greenwood FCA, which the Federal Court of Appeal determined were not binding authority to limit the Court’s exercise of residual jurisdiction. While I agree with the Defendant that the Court should defer to Parliamentary intent where possible, it should nevertheless look beyond the mere availability of such internal recourses in determining whether “the internal mechanisms are incapable of providing effective redress:” Greenwood FCA at para 130. The question is not whether the existence of these mechanisms in the abstract should prevent the Court from exercising its jurisdiction; rather, the Court must determine whether in reality these internal mechanisms adequately address the pleaded claims in the pleaded circumstances such that the Court should defer to them. As this Court has held in the context of intervening in employment-related disputes, there must be a gap in labour adjudication that causes a “real deprivation of ultimate remedy:” Hudson at para 74, citing Weber v Ontario Hydro, [1995] 2 SCR 929 at para 57.
[31] The Defendant argues that this case is unlike Greenwood FC due to a lack of evidence demonstrating that the CAF’s grievance process is incapable of providing effective redress for what it characterizes as essentially workplace disputes. I disagree. Here, the Plaintiff adduced sufficient evidence contained within the Houston affidavit to provide some basis in fact that the internal dispute resolution schemes that the Defendant points to are ineffective in providing the redress sought under the class proceeding. While much of the evidence the Plaintiff puts forward relates to the system’s delays, there is some evidence suggesting that the effectiveness of the internal process is severely limited by the deterrents in using the process, including the class members’ grounded fear of repercussion and retaliation and the lack of confidentiality. The Plaintiff’s affidavit and those of Mr. Ryan Lewis and Mr. Stephan Poitras further provide direct evidence as to how the CAF grievance process, which they did use or attempted to use, inadequately addressed their alleged harms, and even exacerbated them.
[32] This case is different from those the Defendant cites, where the plaintiffs alleged general harassment and other harms that could properly be addressed by the available internal mechanisms. Here, there are exceptional circumstances warranting the Court’s residual discretion to exercise jurisdiction. The alleged lack of independence of the internal process is central to its inadequacy—the CAF cannot rely on internal processes that lack impartiality to provide the same redress sought under the proposed class proceeding. Art 7.14 of the QR&O states that a grievance is made within a Class Member’s chain of command unless the complaint is about that person, in which case it is referred to the next person in line. However, the Arbour Report, among others, identified that the final decision on grievances is made by the CDS or their delegate. In other words, while there are efforts to ensure impartiality within CAF’s grievance system, there is evidence to suggest that these efforts are not sufficient.
[33] Moreover, in this litigation, the processes themselves form part of the allegations. That is, in the process of attempting to receive remedy for the alleged harms, class members may receive further harm on the same basis that they seek the remedy.
[34] CAF’s internal processes are also limited to current CAF members. In contrast, this class proceeding seeks to provide relief for current and former members. This is further support that the internal processes advanced by the Defendant are not an adequate basis for the Court to defer jurisdiction.
(2) Section 9 of the Crown Liability and Proceedings Act
[35] CAF members may be entitled to disability benefits for pain and suffering compensation and/or a disability pension administered under the Veterans Well-being Act, SC 2005, c 21 [VWA] and Pension Act, RSC 1985, c P-6 [PA], respectively. To qualify for these benefits, a current or former CAF member must apply to Veterans Affairs Canada [VAC], have a diagnosed medical condition or disability, and be able to demonstrate a connection between that injury and the individual’s service in the CAF. Service-related injuries include those of a psychological nature.
[36] Once an individual is found to be entitled to VAC benefits, the extent of compensation depends on their degree of impairment, i.e., the extent of their injury. An individual may apply for a revaluation of their degree of impairment if their condition worsens. It is not necessary for revaluation purposes that their condition worsens due to their service in the CAF.
[37] In addition, the VAC compensates for up to three injuries or diseases which are consequential to service-related injuries: VWA, s 7; PA, s 21(2.1). For example, pain and suffering compensation may be granted for disabilities which are a consequence of an injury or disease which was previously determined to be service-related.
[38] Decisions on an individual’s entitlement to and assessment of VAC benefits are subject to departmental review or appeal to the independent Veterans Review and Appeal Board. These decisions are further subject to judicial review.
[39] Given the availability of disability benefits by VAC, the CAF submits that section 9 of CLPA provides a bar to the Plaintiff’s and class members’ claims. The section bars claims against the Crown where a pension or other compensation is payable:
No proceedings lie where pension payable
Incompatibilité entre recours et droit à une pension ou indemnité
9 No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made.
9 Ni l’État ni ses préposés ne sont susceptibles de poursuites pour toute perte — notamment décès, blessure ou dommage — ouvrant droit au paiement d’une pension ou indemnité sur le Trésor ou sur des fonds gérés par un organisme mandataire de l’État.
[40] In Sarvanis v Canada, 2002 SCC 28 [Sarvanis] at paragraph 29, the Supreme Court explained: “All damages arising out of the incident which entitles the person to a pension will be subsumed under s. 9, so long as that pension or compensation is given 'in respect of', or on the same basis as, the identical death, injury, damage or loss.” In this way, section 9 of the CLPA prevents claimants from receiving “double recovery” for the same factual situation under which the government already made a payment: Sarvanis at para 28.
[41] In Prentice v Canada, 2005 FCA 395, the Federal Court of Appeal observed at paragraph 24 that “in order to determine whether a case arises out of an employer‐employee relationships, the facts giving rise to the dispute must be considered, and not the “characterization of the wrong” alleged; otherwise, “innovative pleaders” could “evade the legislative prohibition on parallel court actions by raising new and imaginative causes of action”.”
[42] The Defendant submits that the claims alleged on behalf of the class members indeed arise from the same factual basis for which compensation has been paid, or is payable, through VAC disability benefits. It argues that the Plaintiff’s and class members’ claims can be reduced to seeking compensation for service-related injuries, compensated by VAC benefits. Indeed, the Plaintiff and its affiants have received these benefits; for example, the Plaintiff is in receipt of compensation and other benefits through VAC for his post-traumatic stress disorder and major depressive disorder.
[43] As outlined above, the Defendant submits that CAF members may receive additional compensation where they are already a recipient of disability benefits and claim their condition has worsened for whatever reason, including workplace discrimination or harassment. The VAC has authority to re-evaluate the degree of impairment, and subsequent amount of compensation, any time following receipt of VAC benefits. To the extent that the Plaintiff raises allegations of compensable harm for which he is not in receipt of VAC benefits, the Defendant submits that he is required to first make an application to VAC for compensation before commencing an action.
[44] The Plaintiff submits that section 9 of the CLPA does not apply as VAC only compensates “service-related disability” and therefore excludes compensation for harassment, abuse, discrimination, bullying, stigmatization and other pleaded harms that do not amount to a service-related disability.
[45] The Plaintiff also submits that there is no evidence that the Plaintiff, nor the class members, have been or could be compensated through the VAC for the same claims put forward by the proposed class proceeding. Mr. Thomas received VAC benefits for his “post traumatic stress disorder and major depressive disorder [that were] attributable to [his] SDA Cyprus service.” However, the VAC denied Mr. Thomas benefits for his later claim of aggravation of his MHD caused by harassment he faced within his CAF chain of command, under the reason that he had already received “full disability entitlement” for his earlier claim. Although his MHD originates from his SDA Cyprus service, his secondary claim was to compensate for the separate harm he suffered more than five years later. Other class members such as Mr. Poitras and Mr. Lewis similarly received benefits from the VAC although there is no evidence that links these benefits to the claims pleaded in the proposed class proceeding. Instead, there is evidence to suggest that these benefits were provided to compensate for claims unrelated to the pleaded claims, i.e., the unrelated development of MHDs.
[46] Finally, the Plaintiff submits that the CAF’s processes for administrating VAC disability benefits are plagued by systemic flaws and deficiencies. The Plaintiff provides evidence within the Houston affidavit that details the undue delays in processing VAC disability benefit applications.
[47] I find that the relief the Plaintiff seeks on behalf of the class members is beyond what can be and has been provided by the VAC. While the VAC may compensate class members for developing diagnosed MHDs during their service, the VAC does not independently compensate for the separately pleaded harms like abuse, harassment, and discrimination. Contrary to the Defendant’s characterization, these are not consequential or ancillary damages for an event in which compensation has been or is being paid under the VWA or PA. These are, instead, harms arising out of a separate factual basis from those compensated for by the VAC.
[48] The Defendant cites a number of cases that it claims stands for the proposition that section 9 of the CLPA bars claims by CAF members for compensation for service-related injuries. For example, in Lafrenière v Canada (Attorney General), 2020 FCA 110, the Federal Court of Appeal held that section 9 of the CLPA applied to bar the plaintiff’s claim for damages which was over the same condition and in respect of the same events which gave rise to his VAC pension. Even though the plaintiff’s claim related primarily to the harm he faced by the Crown’s processing of his complaint, rather than the complaint itself, the Court found that this harm intrinsically related to the factual basis upon which he already received compensation. Further, in Sherbanowski v Canada (Ministry of National Defence), 2011 ONSC 177, the court held that section 9 of the CLPA applied on the evidence that established the plaintiff had been compensated by his VAC pension for the precise issues complained of in the plaintiff’s action. The plaintiff in that case received his VAC benefits following the alleged events which gave rise to his civil claim, and which the VAC took into account.
[49] The facts of this matter are different. The evidence provided on behalf of the class members receiving VAC benefits demonstrates that the benefits do not extend to the relief sought under this proceeding. In circumstances where the benefits were provided, they were given for a different alleged harm, and in respect of different events that occurred prior to the events amounting to the pleaded harms (i.e., compensating the development of the MHD and not the resulting harms that were inflicted on class members as a result of their already-developed MHDs). It is not clear nor obvious that the VAC has or could compensate the class members for the same factual basis underlying the common issues. This is especially true considering that the class includes individuals who have diagnosed MHDs, but did not necessarily develop those MHDs through the course of service. In these circumstances, it is even more clear and obvious that the VAC cannot provide adequate redress for the pleaded harms which claimants suffered as a result of having a MHD.
[50] The delay of the CAF’s process in distributing VAC benefits is irrelevant in determining the adequacy of the benefits for the purposes of section 9. This is immaterial, however, since the other evidence demonstrates that the benefits, if provided, would not necessarily address the pleaded claims.
[51] Therefore, section 9 of the CLPA does not apply to absolve Crown liability and prevent the Court from moving forward with the certification motion.
B. Should the Defendant be permitted to resile from an admission in its Memorandum? [52] The Defendant made the following statement at paragraph 32 of its Memorandum:
On the first branch of the test for certification, the onus rests on a plaintiff to show a reasonable cause of action against the defendant. It is not enough that some other members of the class may have a claim. The cause of action in negligence is framed in the plaintiff’s factum “as workplace culture which condones ostracization and maltreatment” of persons with Mental Health Disorders. This language is consistent with the negligence claim made in Greenwood and which the Federal Court of Appeal upheld as disclosing a reasonable cause of action. Therefore, the defendant acknowledges that a cause of action for the purposes of certification has been sufficiently plead in this case. [emphasis added and footnotes omitted]
[53] The underlined statement above is clearly an admission made in relation to this certification motion. At the commencement of the oral hearing, more than seven months after filing its Memorandum, the Defendant informed the Court that it was no longer conceding that the pleading disclosed a reasonable cause of action:
There was -- there's just one additional point. In terms of our written submissions, we've advised plaintiff's counsel of this, that in our submissions under reasonable cause of action we had conceded for negligence. That was in error, we're not conceding (inaudible).
[54] The Defendant’s advice to the Plaintiff was by way of email dated September 12, 2023, less than one week prior to the hearing, in which the Defendant wrote:
We would also like to advise that in light of the recent court of appeal decision in K.O. v. British Columbia (Ministry of Health), 2023 BCCA 289, we will be taking the position that the negligence claim does not disclose a reasonable cause of action due to the absence of material facts in the pleadings.
[55] The Plaintiff responded by return email:
… the Plaintiff does not agree that Canada can simply resile from the formal position expressed to the Plaintiff and the Court in its materials, particularly at this late stage and in light of the obvious prejudice to the Plaintiff.
[56] I agree with the Plaintiff that the Defendant cannot “simply resile” from the formal position it expressed to the Court and the Plaintiff in its Memorandum. In this context. I accept that the Court is to be guided by the jurisprudence in the Federal Courts regarding amendment of pleadings. Prime among these principles is that a formal admission cannot be withdrawn without leave of the Court or with consent: Apotex Inc v Astrazeneca Canada Inc, 2012 FC 559, aff’d 2013 FCA 77. Here, there is no consent. The Defendant proceeded as if it had a unilateral right to withdraw its admission. No motion, formal or informal, was made to the Court to withdraw the admission, and thus no affidavit filed to explain the circumstances leading to the proposed withdrawal, or explanation offered as to why it ought to be permitted.
[57] Given the paucity of explanation, the Court questioned counsel as to why it was now seeking to withdraw the admission, and the basis on which the Court ought to grant the request. Various explanations were offered, including the following:
So the admission that was made was -- wasn't an admission, it was a concession and we did concede that if this case were Greenwood then yes, this concession applies. And I think what became clear to us upon review of the Court of Appeal decision in K.O. was that this case isn't Greenwood, this case is about mental health stigma.
If this were bully and harassment case, then that concession applies, but that's not what this case is.
…
I think our position is obviously that, you know, it's still their case to make, the pleading still need to be properly pled and that's the plaintiff's onus. I under- -- and that is our position.
…
We made a mistake. That's what it comes down to. I think when we reviewed the Court of Appeal decision, which came out recently, it became very clear that a more critical look at the pleadings was necessary.
At first blush -- it's very easy at first blush to say okay, this is a bully and harassment case and Greenwood was certified -- and this is, this is where I was going at the beginning where I said if this was Greenwood it could have gotten certified. It's not. Because it's very easy at first blush to say, well people are being mistreated in the workplace, it's bullying, it's harassment.
The Court of Appeal Decision -- the language in the Court of Appeal Decision caused us to look more critically at first the pleadings and what they actually said, as opposed to just accepting, well this is mistreatment in the workplace, this must be Greenwood. And on a critical review, the material facts are not pled. They're not there. It's almost identical. So that is the problem that we recognize now.
…
If I may, just one second.
Reasonable cause of action, we can't keep our concession from reasonable cause of action. And the reason we cannot is in the event that this matter does go to appeal we need to be able to raise those issues there as well. I'm not saying that it is going to go to appeal, but we need to be at least able to say that the argument was made. So that is -- you know, that is a concern that, you know, Crown has. So I appreciate being able to at least make the argument.
[58] Even if I were to accept that the potential prejudice to the Plaintiff can be alleviated by an adjournment, I would not be prepared to grant one in the present circumstances.
[59] The first consideration is the length of time this hearing has been scheduled and the effect an adjournment would have on the Court processes and schedule. By Order of March 20, 2023, the hearing of this motion was scheduled for five days, from September 18, 2023 to September 22, 2023, at the Court in Vancouver, British Columbia.
[60] The second consideration is the fact that the BC Court of Appeal decision in K.O. v British Columbia (Ministry of Health), 2023 BCCA 289 [K.O. CA] issued July 17, 2023, some two months prior to the hearing of this motion. While “recently” is not a specific term, the Defendant had more than ample time to review that decision and assess its impact on this litigation, rather than waiting to so do a few days prior to the hearing.
[61] The third and most relevant consideration is that K.O. CA did not establish any new principle of law or even reverse the Motion Judge’s decision not to certify the proposed class action: K.O. v British Columbia (Ministry of Health), 2022 BCSC 573 [K.O. SC]. On April 8, 2022, the Motion Judge refused certification, in part, based on the absence of a reasonable cause of action. At paragraphs 20–22, the following observation is what the Defendant now says is equally true of this matter:
… I find that the pleadings consist almost entirely of bare allegations unsupported by pleaded material facts and fail to disclose a triable cause of action. There are no specific allegations that K.O. has been harmed by the conduct of anyone for whom the defendant is or might be said to be directly or vicariously responsible. Neither are there material facts to anchor K.O.’s claim that she has suffered “systemic barriers” in accessing healthcare, or that her specific mental illness has not been treated as “medical