Leach v. Canada
T-986-93
Simpson J.
31/5/95
8 pp.
Motion for stay of proceedings to enable plaintiff to apply for pension under Pension Act-Plaintiff, former corporal in Canadian Armed Forces, alleging sexual harassment against two superior officers-Complaints dismissed-Later diagnosed with delusional disorder, charged with failure to present self for work, confined to barracks for 12 days-Discharged as unsuitable for further service-Action seeking damages arising from intentional infliction of mental suffering, false imprisonment, defamation-Application for pension in relation to matters raised in litigation not yet made-Crown Liability and Proceedings Act, s. 9 prohibiting proceedings against Crown servant if pension payable out of any funds administered by agency of Crown-"Payable" meaning readily enforceable legal right to collect and corresponding legal obligation to pay: Gustar v. Wadden et al. (1994), 45 B.C.A.C. 55 (C.A.)-Absent application for pension, no such rights, obligations exist-Pension Act, s. 111 prohibiting action against Crown servant in respect of injury where pension may be awarded under Act-S. 111 can apply in absence of application for pension-Question whether pension "may be awarded" having regard to facts, nature of claim, Pension Act-Pension Act, s. 21(2) providing pensions awarded in peacetime where member of forces suffering disability caused by injury or disease arising out of, or directly connected to, military service-Disability defined to mean loss or lessening of power to will and to do any normal mental or physical act-Mental or physical injury causing long-term loss of normal function required-Disability must be caused by injury arising out of, or directly connected to, military service-Causes of action herein not matters in respect of which pension may be awarded-No direct nexus between sexual harassment, defamation and military situation-Claim for false imprisonment may have necessary nexus to military, but not pleading false imprisonment resulting in disability-No prospect pension may be awarded with respect to causes of action-Application dismissed-Pension Act, R.S.C., 1985, c. P-6, ss. 21(2) (as am. by S.C. 1990, c. 43, s. 8), 111-Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 9.