Bernath v. Canada

Bernath v. Canada

The Canadian Forces grievance resolution process, including the initial authorities, the CDS and the Grievance Board, is not a "court of competent jurisdiction" under s.24(1) of the Charter because its function and structure do not permit independent adjudication of Charter questions or the granting of monetary Charter remedies; accordingly the CDS decision did not give rise to res judicata or justify a finding of abuse of process, the appeal from the prothonotary was allowed and the motion to strike was dismissed, and the applicant may proceed in Federal Court without first obtaining judicial review of the CDS decision.

Citation
2007 FC 104
Parties
Applicant: Patrick Bernath; Respondent: Her Majesty the Queen
Court
Federal Court
Jurisdiction
Canada
Judgment Date
31 January 2007
Procedural Posture
Appeal Under Federal Courts Rules (rule 51) From Prothonotary's Order Striking Pleadings / Appeal From Prothonotary's Order (motion to Strike)
Outcome
Appeal allowed; prothonotary's decision reversed; respondent's motion to strike dismissed
Legal Topics
Charter S.7 and S.24, Grievance Procedure Under National Defence Act, Res Judicata, Abuse of Process, Judicial Review, Jurisdiction of Tribunal
Source Language
English
Constitutional Law Administrative Law Military Law Civil Procedure Charter S.7 and S.24 Grievance Procedure Under National Defence Act Res Judicata Abuse of Process +2 more

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Parties

Patrick Bernath

Applicant

Her Majesty the Queen

Respondent

Procedural Posture

Appeal Under Federal Courts Rules (rule 51) From Prothonotary's Order Striking Pleadings / Appeal From Prothonotary's Order (motion to Strike)

Legal Issues

  1. 1 Whether the Canadian Forces grievance resolution process is a "court of competent jurisdiction" under s.24(1) of the Charter
  2. 2 Whether res judicata bars the applicant's Charter claim given the CDS decision on the grievance
  3. 3 Whether the applicant's action before the Federal Court constitutes an abuse of process

Ratio Decidendi

The Canadian Forces grievance resolution process, including the initial authorities, the CDS and the Grievance Board, is not a "court of competent jurisdiction" under s.24(1) of the Charter because its function and structure do not permit independent adjudication of Charter questions or the granting of monetary Charter remedies; accordingly the CDS decision did not give rise to res judicata or justify a finding of abuse of process, the appeal from the prothonotary was allowed and the motion to strike was dismissed, and the applicant may proceed in Federal Court without first obtaining judicial review of the CDS decision.

Court Disposition

Appeal allowed; prothonotary's decision reversed; respondent's motion to strike dismissed

Orders

  • The appeal of the prothonotary’s decision dated September 9, 2005 is allowed
  • The respondent’s motion to strike is dismissed