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Crown Liability (Fed) - Crown Liability and Proceedings Act. McQuade v. Canada (Attorney General) [no civil claim if similar pension s.9]
In McQuade v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal allowed a class plaintiffs' certification motion appeal, this where they "sought certification of a class proceeding, as representative plaintiffs, on behalf of a class of current and former regular members of the RCMP with an Operational Stress Injury".
Here the court considers a Charter s.15 civil claim (discrimination in mental versus physical disability), here in the context of whether the federal CLPA s.9 ['Special Provisions respecting Liability - No proceedings lie where pension payable'] applied to bar some or all of the class proceeding - though only on the preliminary 'some basis in fact' [the obverse of the 'plain and obvious' that it would fail standard] class certification standard:[79] More fundamentally, I do not agree with the Federal Court’s conclusion that a Charter claim premised on the same facts as a tort claim which is barred by section 9 of the CLPA will necessarily be similarly barred. The cases cited do not stand for this proposition.
[80] In Prentice v. Canada, 2005 FCA 395, [2006] 3 F.C.R. 135 [Prentice], the plaintiff member of the RCMP was entitled to compensation for injury suffered from various peace-keeping missions and sought damages from the RCMP, claiming a breach of his rights under section 7 and subsection 15(1) of the Charter. The Federal Court of Appeal granted a motion to strike the statement of claim, having determined that the plaintiff’s Charter claims were, when "“stripped of [their] artifices”", a disguised civil action against the Crown, prohibited by sections 8 and 9 of the CLPA: Prentice at paras. 69, 70.
[81] Similarly, in Lafrenière, the appellant received disability awards relating to his service in the Canadian Armed Forces and sought further damages from the Crown, based on alleged breaches of various Charter rights. This Court confirmed that the entire claim should be struck based on section 9, and cautioned that the real nature of the action must be determined, not the characterization of the wrong by an artful pleader: Lafrenière at para. 60. The Court concluded that the plaintiff’s Charter complaints were completely unsupported, a disguised action in liability against the Crown, and prohibited by section 9 of the CLPA.
[82] These decisions tell us that there must be an inquiry as to whether the Charter claim is a "“real”" Charter claim or another type of claim, such as a tort claim, dressed up as a Charter claim. If the latter, and the claim based on its true character would be barred by section 9, then it necessarily follows that the disguised Charter claim would also be barred.
[83] While the respondent submits that the Federal Court found the Charter claim to be a disguised civil claim, I disagree. The Federal Court concluded that because the Charter claim and the systemic negligence claim were premised on the same facts, the Charter claim was also barred: Reasons at para. 83. According to the Federal Court, the nature of the claim does not matter: "“[s]ection 9 of the CLPA applies to the whole fact situation”": Reasons at para. 78, citing Kift v. Canada (Attorney General), 2003 CanLII 11719 (ON SC), [2002] O.J. No. 5448 (QL/Lexis) at para. 9, 2002 CarswellOnt 8593 (WL) (S.C.J.).
[84] The cases cited by the Federal Court do not stand for this proposition either. The "“same set of facts”" framework, while appropriate in the context of a tort claim, does not clearly apply to determine whether a Charter claim may be barred by section 9.
[85] Uncertainty regarding the application of section 9 of the CLPA to a Charter claim was expressed in Dumont. This Court concluded in the context of a section 9 challenge to a claim under section 7 of the Charter, that in the event of a Charter breach "“it is far from certain that section 9 of the Act can be relied upon to exclude a fair and appropriate remedy”", and that it would be up to the judge responsible to determine whether it would be appropriate to add further compensation: Dumont at para. 78.
[86] In Prentice, this Court did not opine on whether, even if there were a Charter violation, the action would be barred by Crown immunity: at para. 77. Similarly, in Lafrenière this Court did not conclude that section 9 bars a Charter claim as on the facts of the case, there was no real Charter claim. As the Court observed (at para. 49): "“The Supreme Court of Canada, like this Court, has not yet had an opportunity to decide the substantive question as to whether the immunity provided for in section 9 of the CLPA also applies to remedies sought under the Charter.”"
[87] Sherbanowski v. Canada, 2011 ONSC 177 [Sherbanowski], also cited by the Federal Court, provides some support for the view that section 9 can bar a Charter claim on the same basis as a tort claim. The Ontario Superior Court determined that the plaintiff’s claims of negligence, breach of fiduciary duty, breach of contract, misrepresentation and breach of Charter rights were barred by section 9 as they had the same factual basis as the plaintiff’s disability pension: Sherbanowski at paras. 43-44. See also Gervais c. R., 2019 QCCS 1087 at paras. 74-76. Two recent cases of the Federal Court relied on the motion judge’s analysis here to reach a similar conclusion: Dunn at paras. 109-111; Fowler at para. 18.
[88] The unsettled state of the law regarding whether the appellants’ subsection 15(1) Charter claim (assuming it were properly pleaded) would be barred by section 9 of the CLPA ought to have been considered by the Federal Court. This alone would have weighed in favour of a determination that it was not "“plain and obvious”" that there was no reasonable cause of action based on subsection 15(1) of the Charter: Nunavut Tunngavik Incorporated et al. v. The Commissioner of Nunavut et al., 2024 NUCA 9 at paras. 23-24; Mohr v. National Hockey League, 2022 FCA 145, [2021] 4 F.C.R. 465 at para. 52. . McQuade v. Canada (Attorney General)
In McQuade v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal allowed a class plaintiffs' certification motion appeal, this where they "sought certification of a class proceeding, as representative plaintiffs, on behalf of a class of current and former regular members of the RCMP with an Operational Stress Injury".
Here the court focussed on the main issue in this ruling, which was whether the federal CLPA s.9 ['Special Provisions respecting Liability - No proceedings lie where pension payable'] applied to bar some or all of the class proceeding - though only on the 'some basis in fact' [the obverse of the 'plain and obvious' that it would fail standard] class certification standard:[2] The appellants claimed that the RCMP was systemically negligent in delivering Mental Health Services to members of the proposed Class (terms defined in the second fresh as amended statement of claim). They also claimed that the RCMP discriminated in delivering Mental Health Services to proposed Class members, when compared to services provided to persons with physical injuries, in violation of subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter). The damages sought were not for the Operational Stress Injuries but for the "“separate event”" of the alleged RCMP systemic negligence and Charter breach in delivering or failing to deliver Mental Health Services.
[3] Each of the proposed representative plaintiffs received a disability pension pursuant to section 32 of the Royal Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11 (RCMP Superannuation Act). The central issue on the certification motion was whether the claims for systemic negligence or under subsection 15(1) of the Charter were barred pursuant to section 9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (CLPA). Section 9 of the CLPA bars a claim against the Crown if a pension or other compensation is paid or 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.
[4] On the certification motion, the Federal Court concluded that the claims were barred by section 9 of the CLPA for proposed Class members entitled to receive a disability pension, including the proposed representative plaintiffs, such that there was no suitable representative plaintiff. The motion for certification was dismissed with leave to amend the statement of claim: 2023 FC 1083 (per Fothergill J.) (Reasons).
....
[22] The Federal Court then considered whether section 9 of the CLPA applied, citing the Supreme Court of Canada’s decision in Sarvanis v. Canada, 2002 SCC 28, [2002] 1 S.C.R. 921 [Sarvanis] and subsequent decisions interpreting and applying section 9. In Sarvanis, the Supreme Court held that section 9 of the CLPA establishes Crown immunity "“where the very event of death, injury, damage or loss that forms the basis of the barred claim is the event that formed the basis of a pension or compensation award”" (at para. 38).
[23] The Federal Court noted that in Greenwood v. Canada, 2020 FC 119, aff’d 2021 FCA 186, [2021] 4 F.C.R. 635 [Greenwood], Marsot v. Canada (Department of National Defence), 2002 FCT 226, 217 F.T.R. 232 [Marsot], aff’d 2003 FCA 145, 303 N.R. 282 and Brownhall v. Canada (National Defence) (2007), 87 O.R. (3d) 130, 2007 CanLII 31749 (S.C.J. (Div. Ct.)) [Brownhall], there was insufficient evidence to assess whether the pension or other compensation arose from the same factual basis as the civil claim. ....
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[45] The appellants claim that the Crown was systemically negligent in implementing the Mental Health Services for the proposed Class. The Federal Court correctly stated the elements of the tort of negligence and applied the legal framework to the claim. Assuming the pleaded facts to be true, the Federal Court concluded that it was not "“plain and obvious”" that there was no reasonable cause of action for a systemic negligence claim. I agree with this conclusion, and it is not contested. The dispute in this appeal is about the Federal Court’s determination that section 9 of the CLPA barred the claim.
[46] The interpretation of section 9 of the CLPA is a question of law, reviewable for correctness. The application of section 9, absent an extricable legal error, is a question of mixed fact and law, reviewable on a standard of palpable and overriding error: Lafrenière at paras. 30, 47; Bewsher v. Canada, 2020 FCA 216 at paras. 7, 15, aff’g 2019 FC 1350 at paras. 3-4.
[47] Section 9 of the CLPA bars an action against the Crown if a pension or compensation is paid or payable out of the Consolidated Revenue Fund or any funds administered by an agency of the Crown to the claimant in respect of the death, injury, loss or damage in respect of which the claim is made. In effect, section 9 of the CLPA bars double recovery where a government scheme provides a form of compensation in relation to the death, damage, injury or loss that is relied on in the action: Sarvanis at para. 28. Section 9 has been interpreted to provide Crown immunity where different heads of damages are claimed than those compensated by the pension or other compensation, on the basis that they both arose from "“the same factual basis”" or same event: Sarvanis at paras. 28-29, 38; Vancise v. Canada (Attorney General), 2018 ONCA 3 [Vancise] at para. 12; Lafrenière at paras. 45-46.
[48] The burden is on the Crown to establish that section 9 applies: Flying E Ranche Ltd. v. Attorney General of Canada, 2022 ONSC 601 at para. 496, aff’d 2024 ONCA 72 [Flying E Ranche]; Brownhall at para. 51; Marsot at paras. 61, 66. In my view, this holds true whether the Crown’s challenge arises in the context of a motion to strike brought before trial or on a certification motion where the reasonable cause of action criterion is in issue. The inquiry is the same—whether it is "“plain and obvious”" that section 9 of the CLPA bars the claim such that there is no reasonable cause of action.
[49] Section 9 of the CLPA provides:"Special Provisions respecting Liability"
"Dispositions spéciales concernant la responsabilité"
"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." [50] In Sarvanis, the leading case on section 9 of the CLPA, the Supreme Court held that section 9 bars a tort claim against the Crown where a pension or other compensation is paid or payable "“in respect of”" or on the "“same factual basis”" as the death, injury, damage or loss as gives rise to the claim. Justice Iacobucci, writing for the Court, stated (at paras. 28-29):28 In my view, the language in s. 9 of the Crown Liability and Proceedings Act, though broad, nonetheless requires that such a pension or compensation paid or payable as will bar an action against the Crown be made on the same factual basis as the action thereby barred. In other words, s. 9 reflects the sensible desire of Parliament to prevent double recovery for the same claim where the government is liable for misconduct but has already made a payment in respect thereof. That is to say, the section does not require that the pension or payment be in consideration or settlement of the relevant event, only that it be on the specific basis of the occurrence of that event that the payment is made.
29 This breadth is necessary to ensure that there is no Crown liability under ancillary heads of damages for an event already compensated. That is, a suit only claiming for pain and suffering, or for loss of enjoyment of life, could not be entertained in light of a pension falling within the purview of s. 9 merely because the claimed head of damages did not match the apparent head of damages compensated for in that pension. 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.
(Emphasis in original) [51] Section 9 of the CLPA has broad reach. As Justice Iacobucci observed, the words "“in respect of”" have a wide scope: "“They import such meanings as ‘in relation to’, ‘with reference to’ or ‘in connection with’. The phrase ‘in respect of’ is probably the widest of any expression intended to convey some connection between two related subject matters”": Sarvanis at para. 20, quoting Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at p. 39, 1983 CanLII 18 (S.C.C.).
[52] The Federal Court correctly cited the decisions in Sarvanis, Greenwood, Marsot and Brownhall regarding the "“same factual basis”" framework. This was relevant to whether section 9 applied to bar the systemic negligence claim on a Class-wide basis—if a disability pension was paid or payable to proposed Class members on the same factual basis (or with respect to the same factual basis) as underlay the claim. ....
[53] .... I do not accept that it is "“plain and obvious”" at this stage that section 9 operates to bar a systemic negligence claim for all proposed Class members entitled to receive a disability pension.
[54] Section 9 of the CLPA is often dealt with in non-class proceedings in the context of a motion to strike before trial or a motion for summary judgment. See, for example: Bewsher at paras. 12-14; Lafrenière at paras. 36-47; North Bank Potato Farms Ltd. v. The Canadian Food Inspection Agency, 2019 ABCA 344 at paras. 16-26; Vancise at paras. 9-17. The factual basis for the claim in the proposed proceeding is lined up against the factual basis for the plaintiff’s entitlement to a government pension or compensation, applying Sarvanis to determine whether they are sufficiently linked such that section 9 applies. For example, as the Court in Brownhall expressed (at para. 37):Sarvanis makes it clear that the question to be asked is whether the factual basis for the pension and the action is the same. Does the same loss or injury underlie both? If it is plain and obvious, on the facts as pleaded, that the same loss underlies both, the action is barred by s. 9 of the CLPA. [55] There is a dearth of case law on the application of section 9 at the certification stage of class proceedings. In Greenwood, the Federal Court of Appeal upheld the Federal Court’s conclusion that it was premature to apply section 9 at certification. Notably, this was in the context of whether there was a suitable representative plaintiff and not whether the pleadings disclosed a reasonable cause of action. Indeed, the respondent could point to no case, other than the Federal Court’s decision in this proceeding, in which section 9 of the CLPA applied at certification on a class-wide basis.
[56] In applying a statutory limitations defence, a claim will not be barred for an entire class unless there is clear evidence of class-wide commonality. I consider a statutory limitations defence analogous to a section 9 bar which is also a statutory defence. Without class-wide commonality, the defence is an individual issue that requires separate adjudication after the common issues are determined: Krishnan v. Jamieson Laboratories Inc., 2021 BCSC 1396, 60 B.C.L.R. (6th) 369 at para. 95, aff’d 2023 BCCA 72; Smith v. Inco Limited, 2011 ONCA 628, 107 O.R. (3d) 321 at paras. 164-165; Martin v. Wright Medical Technology Canada Ltd., 2024 ONCA 1 at paras. 40-42.
[57] The respondent submits that there is evidence of Class-wide commonality that negates the need for individual assessment. They say that every proposed Class member has a persistent psychological injury that is connected to their RCMP service (an Operational Stress Injury). They say that "“on its face”" this means that a disability pension is paid or payable.
[58] I disagree. As the Federal Court acknowledged, a disability pension is only payable for formal medically diagnosed disabilities or disabling conditions, as informed by the Diagnostic and Statistical Manual of Mental Disorders, causing permanent impairment. This may not include every Operational Stress Injury. Although there was no evidence of a proposed Class member who was not entitled to a disability pension, there was no evidence that such a person did not exist. Thus, while each proposed Class member has an Operational Stress Injury, the respondent did not establish that every proposed Class member had a disability pension paid or payable.
[59] Further, and crucially, there was no evidence as to whether a proposed Class member would be entitled to any disability pension amount pursuant to section 32 of the RCMP Superannuation Act for or in respect of the same events that underlie the claim for systemic negligence. Section 32 provides that an award shall be granted if an injury or disease "“or the aggravation of the injury or disease”" resulting in the disability arose out of or was directly connected to service with the RCMP. We simply do not know if proposed Class members would be entitled to receive amounts under section 32 in respect of the events that underlie the systemic negligence claim including for "“the aggravation of”" an underlying injury.
[60] While the proposed representative plaintiffs were in receipt of increased pension amounts by reason of their diagnoses with mental health conditions flowing from their service with the RCMP, there was no suggestion that this included the events alleged to underly the claim for systemic negligence. There was no evidence about whether the proposed representative plaintiffs (or other members of the proposed Class) had applied for or were entitled to additional pension amounts under section 32 if they suffered damages attributable to the provision of or failure to provide Mental Health Services.
[61] In the absence of such evidence, I fail to see how the bar in section 9 of the CLPA could be found to apply at this stage to the proposed representative plaintiffs or to any putative Class member when the full scope of their entitlement to a disability pension has not been established.
[62] Also, for those proposed Class members, like the proposed representative plaintiffs, who had an Operational Stress Injury entitling them to be paid a disability pension (albeit not for the events underlying the alleged RCMP systemic negligence), the mere fact of entitlement to the pension does not provide enough information to conduct a proper section 9 analysis. An Operational Stress Injury tells us what kind of injury a Class member has, but little about the events that caused it. As noted earlier, the Sarvanis analysis demands information about the factual basis of the injury, damage or loss giving rise to the disability pension or compensation so that it can be lined up against the factual basis of the injury, damage or loss alleged to underlie the claim against the Crown. Then a determination can be made on whether the factual basis is the same or if the pension or compensation is paid or payable "“in respect of”" the death, injury, damage or loss in respect of which the claim is made.
[63] Several cases have considered the extent to which section 9 of the CLPA bars a claim for subsequent negligent treatment of the condition giving rise to the pension or other compensation entitlement: see e.g. Lafrenière, Dumont v. Canada, 2003 FCA 475, [2004] 3 F.C.R. 338 [Dumont] and Gélinas v. Canada, 2021 FC 1157. The focus of the analysis is whether there is sufficient linkage between the compensation event and the subsequent treatment. In Lafrenière, this Court concluded that a claim based on the harm arising from the Crown’s processing of the plaintiff’s complaints was barred under section 9 as it was intrinsically related to the factual basis that gave rise to the compensation payment: at paras. 64-67. This line of cases is particularly relevant here. The appellants claim they do not seek damages for the Operational Stress Injuries themselves, for which they acknowledge a disability pension may be payable, but for the losses caused by the "“separate event”" of the RCMP’s alleged systemic negligence in delivering or failing to deliver Mental Health Services.
[64] As addressed further below, the factual basis of each proposed Class member’s entitlement to a disability pension is unique and individualized. The Sarvanis linkage analysis is not possible in the abstract, or, in these circumstances, on a Class-wide basis. There was insufficient evidence regarding proposed Class members’ entitlement or possible entitlement to a disability pension, including in respect of the events giving rise to the alleged RCMP systemic negligence. This lack of evidence meant that a proper section 9 analysis could not be started, let alone support a finding of commonality sufficient to ground the application of section 9 on a Class-wide basis. Thus, even aside from the misplaced reliance on the alleged concession, the Federal Court erred in concluding that section 9 of the CLPA applied to all proposed Class members entitled to a disability pension.
[65] I do not however rule out that section 9 of the CLPA could sometimes apply on a class-wide basis at the certification stage. It may be appropriate in circumstances where the factual basis of a claim is an identifiable loss arising from a common event for all class members and that same event gives rise to a disability pension or other compensation to them all.
[66] The Federal Court recently came to a conclusion along those lines in Dunn, granting a motion to strike a statement of claim in a proposed class proceeding based on section 9. The proposed class proceeding was on behalf of members of the Canadian Armed Forces who were exposed to black mould and other toxins during their military service. The claim asserted systemic negligence, breach of fiduciary duty and violations of section 7 of the Charter. The Federal Court concluded that the pension paid or payable to the plaintiff had the same factual basis as the allegations of loss or damage asserted in the claim. By striking the claim without leave to amend, the Federal Court, in effect, found there to be no reasonable cause of action for the entire class.
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