ARMED FORCES |
McClennan v. Canada (Minister of National Defence)
T-1998-01
2002 FCT 244, MacKay J.
8/3/02
9 pp.
Motion to strike statement of claim on ground disclosing no reasonable cause of action--Statement of claim seeking declaration plaintiff: (i) member of Canadian Armed Forces until release in 2001; (ii) entitled to rights, benefits accrued to any other member of Forces between 1994 and 2001--Plaintiff released from Forces in 1994 for performance, disciplinary reasons--In 1998 this Court setting aside decision to release plaintiff--In 2001 decision made to confirm release--Motion allowed--(1) Case law establishing members of Forces serving at pleasure--No contract of employment between Her Majesty and members of Forces--Legal relationship cannot be changed by representatives of Forces--Use of "lawfully" in National Defence Act, s. 23(1) not changing legal relationship, simply describes how enrolment in Forces terminated in accord with regulations--Recognition of change in basic relationship can only come by parliamentary action--(2) Court not having jurisdiction to issue declarations herein--Declarations requested as alternative to claim for payment, including possible pension claims--Any such claim depending upon regulations, statutory provisions for service pay and pensions, not upon implications derived from declarations of Court about term of applicant's service made without reference to those provisions--By Federal Court Act, s. 18, Trial Division having exclusive original jurisdiction to grant declaratory relief only on application for judicial review--Unless Court permitting conversion of application to action, action for declaratory relief generally not approved--While Court may permit proceeding initially framed as action to proceed as application for judicial review, generally inappropriate where relief sought relating to terms of service of member of Forces which are not subject to Court's jurisdiction unless Parliament, through legislation, withdrawing jurisdiction from prerogative authority of Crown, assigning it to Court--No such legislation herein--(3) Possible redress under National Defence Act irrelevant--National Defence Act, R.S.C., 1985, c. N-5, s. 23(1)--Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as am. idem, s. 5).