Arsenault v. Canada
T-2984-92
Wetston J.
21/11/95
10 pp.
Appeal from A.S.P.'s orders striking statement of claim on basis of jurisdiction and on basis disclosed no reasonable cause of action-Plaintiff Arsenault, member of Canadian Armed Forces (CAF), sought damages in negligence against Crown on basis of vicarious liability and for medical malpractice against defendant DND physicians as result of unsuccessful spinal fusion surgery in 1992 and subsequent treatment to correct lower back pain experienced while serving in CAF-Plaintiff's wife and children also seek damages pursuant to Ontario Family Law Act-Released from service in September 1992 as unable to carry out duties-Awarded four-fifths pension entitlement effective September 1992-A.S.P. determined Federal Court without jurisdiction to try claim for damages for negligence against three individual defendants as no federal law of negligence-Also found Court without jurisdiction to try claims, brought by wife and children of plaintiff, based on entitlement created by Ontario Family Law Act-A.S.P. also determined that as pension had been granted with respect to disability, claim against Crown should be struck as disclosing no cause of action within jurisdiction of Federal Court-Motion to set aside A.S.P's orders dismissed-Application of criteria for Federal Court jurisdiction as established in ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752-Crown Liability and Proceedings Act not providing body of existing federal law essential to case, and nourishing statutory grant of jurisdiction conferred in Federal Court Act, s. 17(5)(b)-Claim against Crown servants founded upon tort of negligence not arising from federal law-National Defence Act, s. 95 not creating right of action against Crown servant, creating offence of ill treatment of subordinates-In present case, basis for relief against individual defendants statutory and common law of Ontario-Plaintiffs also barred from suing Crown on basis pension paid: Pension Act, s. 111; Crown Liability and Proceedings Act, s. 9-Even if negligence, plaintiff received maximum amount of pension available to him as result of military service, given pre-existing condition-As plaintiff's claim struck, plaintff's wife and children's derivative claims cannot be maintained-Moreover, Ontario Family Law Act cannot be considered federal law as required by ITO case-Federal Court Act, R.S.C., 1985, c. F-2, s. 17(5)(b) (as am. by S.C. 1990, c. 8, s. 3)-Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, ss. 3, 9 (as am. by R.S.C., 1985 (3rd Supp.), c. 37, s. 4), 10-Pension Act, R.S.C., 1985, c. P-6, s. 111-Family Law Act, R.S.O. 1990, s. 61-National Defence Act, R.S.C., 1985, c. N-5, s. 95.