A-98-90
Ronald Berneche, Brenda Rachelle Berneche and
Jennifer Madeleine Berneche and Kert Alexander
Berneche by their litigation guardian Ronald Ber-
neche (Plaintiffs) (Appellants)
v.
Her Majesty the Queen (Defendant) (Respond-
ent)
INDEXED AS: BERNECHE V. CANADA (C.A.)
Court of Appeal, Mahoney, Stone and Linden
JJ.A.—Ottawa, June 12 and 13, 1991.
Practice — Preliminary determination of question of law —
Trial Judge striking statement of claim under R. 419, but
omitting to deal with application under R. 474(1)(a) for deter
mination of question of law — Case law indicating R. 474 to
be used only where consensus between parties and Court on
need for preliminary determination — Trial Division unduly
restricting application of Rule — R. 474(1)(a) requiring
application by at least one party: Court not to proceed ex
proprio motu — Court must be satisfied (1) facts material to
question of law not in dispute; (2) matter to be determined
pure question of law; (3) determination conclusive of matter in
dispute — Acquiescence of all parties not required — Whether
material facts in dispute for judge to decide, based on entire
pleadings of party respondent — Issue estoppel may be
considered.
Practice — Pleadings — Motion to strike — Appeal from
trial judgment striking statement of claim for failure to dis
close cause of action — Injury sustained while member of
Armed Forces aggravated by medical treatment — Discharged
on medical grounds and awarded pension — Trial Judge
concluding Pension Act, s. 111 (precluding action against
Crown in respect of injury or aggravation thereof resulting in
disability where pension awarded in respect of disability)
removing right of action — Appeal allowed — Not "beyond
doubt" aggravation of injury too tenuously linked to military
service.
Armed forces — Soldier injured, given medical treatment
with tragic results — Crown pleading claim for general,
special and exemplary damages barred by Pension Act, s. 111
(no action lies in respect of injury or aggravation where
pension awarded) — Soldier having been discharged from
Canadian Forces on medical grounds, awarded pension
Appeal from Trial Division order striking statement of claim
— Trial Judge erred in failing to deal with R. 474(1)(a)
(preliminary determinaton of question of law) — Not beyond
doubt aggravation of soldier's injury too tenuously linked to
military service.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
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(1).
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Federal Court Rules, C.R.C., c. 663, RR. 341(b),
419(1)(a), 474(1)(a).
Patent Act, R.S.C., 1985,.c. P-4, s. 56.
Pension Act, R.S.C. 1970, c. P-7, s. 12(2).
Pension Act, R.S.C., 1985, c. P-6, s. 111.
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
Sibo Inc. et al. v. Posi-Slope Enterprises Inc. (1984), 5
C.P.R. (3d) 111 (F.C.T.D.); Wright (F.L.) v. The Queen,
[1987] 1 C.T.C. 218; (1987), 87 DTC 5138; 10 F.T.R.
116 (F.C.T.D.); I.L.W.U. v. Canada, [1987] 3 F.C. 3;
(1987), 9 F.T.R. 149 (T.D.).
APPLIED:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1;
33 N.R. 304.
REVERSED:
Berneche et al. v. Canada (1990), 34 F.T.R. 85
(F.C.T.D.).
CONSIDERED:
Berneche v. Canada, A-314-88, Hugessen J.A., judgment
dated 26/1/89, F.C.A., not reported; R. v. Achorner,
[1977] I F.C. 641; (1976), 16 N.R. 346 (C.A.); Méri-
neau v. R., [1982] 2 F.C. 376 (C.A.); revd [1983] 2
S.C.R. 362.
REFERRED TO:
Foodcorp Ltd. v. Hardee's Food Systems, Inc., [1982] 1
F.C. 821; (1982), 40 N.R. 349 (C.A.).
AUTHORS CITED
Hughes, Roger T. Federal Court of Canada Service, vol.
2, Toronto: Butterworths, 1970.
COUNSEL:
Dougald E. Brown for appellants (plaintiffs).
William J. Miller for respondent (defendant).
SOLICITORS:
Nelligan/Power, Ottawa, for appellants
(plaintiffs).
Deputy Attorney General of Canada for
respondent (defendant).
The following are the reasons for judgment
rendered in English by
MAHONEY J.A.: This is an appeal from an order
of the Trial Division [(1990), 34 F.T.R. 85] made
after the close of pleadings, striking out the plain
tiffs' statement of claim and dismissing their
action for damages. The statement of claim was
filed March 1, 1985, the statement of defence
April 17, 1986, and the reply, almost three years
later, January 12, 1989. The application sought,
alternatively, judgment under Rule 341(b) [Fed-
eral Court Rules, C.R.C., c. 663], dismissal of the
action under Rule 419(1)(a) or determination of a
question of law under Rule 474(1)(a).
Rule 34/. A party may, at any stage of a proceeding, apply for
judgment in respect of any matter
(b) in respect of which the only evidence consists of docu
ments and such affidavits as are necessary to prove the
execution or identify [identity] of such documents,
without waiting for the determination of any other question
between the parties.
Rule 419. (1) The Court may at any stage of an action order
any pleading or anything in any pleading to be struck out, with
or without leave to amend, on the ground that
(a) it discloses no reasonable cause of action or defence, as
the case may be,
and may order the action to be stayed or dismissed or judgment
to be entered accordingly.
(2) No evidence shall be admissible on an application under
paragraph 1(a).
Rule 474. (1) The Court may, upon application, if it deems it
expedient to do so,
(a) determine any question of law that may be relevant to the
decision of a matter,
and any such determination shall be final and conclusive for the
purposes of the action subject to being varied up on appeal.
The statement of claim alleged that, while an
enlisted member of the Canadian Armed Forces,
the plaintiff Ronald Berneche suffered a broken
collarbone in a motorcycle accident. He was treat
ed by medical officers and, on military referral, by
private practitioners with tragic results. He
claimed general, special and exemplary damages.
The other plaintiffs, his wife and children, claimed
general damages. The Trial Judge held, and it was
not argued otherwise before us, that their claims
are entirely derived from his. In the statement of
defence it was pleaded, inter alia, that the action is
barred by section 111 of the Pension Act.'
111. No action or other proceeding lies against Her Majesty
or against any officer, servant or agent of Her Majesty in
respect of any injury or disease or aggravation thereof resulting
in disability or death in any case where a pension is or may be
awarded under this Act or any other Act in respect of the
disability or death.
In their reply, the plaintiffs pleaded that Ronald
Berneche had been discharged from the Canadian
Armed Forces on medical grounds April 17, 1986,
and had been awarded a pension pursuant to sub
section 12(2) of the Pension Act [then R.S.C.
1970, c. P-7]. They pleaded further that the Veter
ans Appeal Board had held:
that any portion of [his] disability which was the result of
medical malpractice or misadventure was not related to [his]
military service and therefore not pensionable.
After the reply was filed, in a separate proceeding
between Ronald Berneche and the respondent, this
Court held that to have been an error. 2 The
application to dismiss the action was supported by
an affidavit exhibiting, inter alia, the reasons for
judgment in that section 28 [Federal Court Act,
R.S.C., 1985, c. F-7] application. Another exhibit
disclosed that the injury was incurred off duty.
The reply also pleaded the invalidity of section
111, at least in the particular circumstances, by
reason of inconsistency with subsection 15(1) of
the Charter [Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act,
' R.S.C., 1985, c. P-6.
2 Berneche v. Canada, Court file A-314-88, decision rendered
January 26, 1989, not reported.
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.) [R.S.C., 1985, Appendix II, No. 44]].
The learned Trial Judge disposed of the applica
tion to dismiss pursuant to Rule 419(1)(a). The
plaintiffs say he erred in that Rule 419(2) provides
that no evidence is admissible on an application
under that Rule. The Trial Judge did not, however,
rely on evidence. He concluded, on the basis of the
facts alleged in the statement of claim alone and
without reference to the reply, that a pension
under the Pension Act was payable and that,
therefore, section 111 deprived the plaintiffs of the
right of action.
The learned Trial Judge concluded, correctly in
my view, that Rule 341(b) was not appropriate to
the circumstances. He appears not to have con
sidered the application of Rule 474(1)(a) at all
and counsel were not prepared to address the
omission in arguing the appeal.
I infer the failure of the Trial Judge to deal with
Rule 474(1)(a) to have been prompted by Trial
Division jurisprudence apparently beginning with
Sibo Inc. et al. v. Posi-Slope Enterprises Inc.,' in
which the defendant in an action for patent
infringement had sought to avail itself of the
procedure to determine its entitlement to an
exemption from liability, under what is now sec
tion 56 of the Patent Act, 4 in respect of an infring
ing article purchased before issue of the patent.
The Associate Chief Justice found that what was
sought to be subject of the preliminary determina
tion were questions of fact, not law. That was
sufficient to support dismissal of the application.
He, nevertheless, went on:
I have difficulty in understanding how this procedure could
be valid in the absence of an agreement between the court and
the parties: it might be possible where there was disagreement
between counsel, although I find it difficult to conceive of such
circumstances.
3 (1984), 5 C.P.R. (3d) 111 (F.C.T.D.), at p. 114.
4 R.S.C., 1985, c. P-4.
The present Trial Judge expressed his understand
ing of that dictum in Wright (F.L.) v. The Queen, 5
an income tax appeal, in the following terms:
The procedure is only appropriate where there is consensus
between the parties and the Court on the need for preliminary
determination. [Emphasis added.]
The editors of the Federal Court of Canada Ser
vice cite another decision of the Associate Chief
Justice 6 for the proposition that [at page 6982]
Rule 474 may only be used where the parties are agreed as to
the factual and legal basis for such application.
With respect, the Trial Division has unduly
restricted application of the Rule.
What Rule 474(1)(a) requires is that there be
application for the preliminary determination by
at least one of the parties: the Court cannot pro
ceed ex proprio motu.' It then requires that the
Court be satisfied (1) that there is no dispute as to
any fact material to the question of law to be
determined; (2) that what is to be determined is a
pure question of law, and (3) that its determina
tion will be conclusive of a matter in dispute so as
to eliminate the necessity of a trial or, at least,
shorten or expedite the trial.
The last requirement was stated by Jackett C.J.,
in the following terms in R. v. Achorner:e
The duty of the Trial Division ... was to form a discretion
ary opinion as to whether it is "expedient", from the point of
view of the most efficient carrying on of the action, to have the
... question dealt with before other steps are taken in the
action.
While the first requirement is often stated in terms
of an agreement or admission of facts because that
is the context in which the application is being
considered, what is required is that the facts ma
terial to the question of law not be in dispute. That
does not require the acquiescence of all parties. It
is a conclusion for the judge to draw and I see no
reason whatever why that conclusion cannot be
5 [1987] 1 C.T.C. 218 (F.C.T.D.), at p. 218.
6 I.L.WU. v. Canada, [1987] 3 F.C. 3 (T.D.).
' Foodcorp Ltd. v. Hardee's Food Systems, Inc., [ 1982] 1
F.C. 821 (C.A.).
8 [1977] 1 F.C. 641 (C.A.), at p. 646.
drawn from the entire pleadings of the party
respondent to the application on the assumption
that what has been pleaded is true. Nor do I see
any reason why an issue estoppel cannot be taken
into account in determining whether facts are in
dispute.
In Mérineau v. R., 9 Pratte J.A., in his dissenting
reasons, described the circumstances of the disabil
ity in issue [at pages 376-377]:
That disability is the result of the negligence of an employee
of a military hospital in which the appellant was treated. It
cannot in any way be connected with any activity by the
appellant in his capacity as a serviceman. The only connection
between the disability and the appellant's military service
derives from the fact that it was caused by a negligent act
committed in a hospital where the plaintiff was entitled to free
treatment because he was a serviceman, and also from the fact
that he was hospitalized in this institution at the suggestion of a
military physician. There is certainly a link between the
damage for which the appellant is claiming compensation and
his status as a serviceman, but I think that link is too tenuous
for one to say that the damage is directly connected to his
military service.
The Supreme Court of Canada adopted that last
sentence in allowing the appeal and entering judg
ment for the former serviceman.
The Charter argument aside, it is not "beyond
doubt" 10 that the aggravation of Ronald Ber-
neche's injury is likewise too tenuously linked to
his military service. In my opinion the learned
Trial Judge erred in striking out the statement of
claim and dismissing the action pursuant to Rule
419(1)(a). I would allow the appeal with costs
here and in the Trial Division.
STONE J.A.: I agree.
LINDEN J.A.: I agree.
9 [1982] 2 F.C. 376 (C.A.); revd [1983] 2 S.C.R. 362.
10 Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [ 1980] 2 S.C.R. 735, at p. 740.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.