Junkin v. Canada
T-868-96
Hargrave P.
22/11/96
9 pp.
Action against Crown, members of military for leading career astray, wrongfully denying legitimate expectations-Test for striking out pleading stated in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980: whether plain and obvious, or beyond reasonable doubt, action cannot succeed; only if action certain to fail by reason of radical defect ought material be struck out-Plaintiff had made it clear wanted to remain in Forces at Edmonton or would retire under advantageous Force Reduction Program (FRP)-Told he would remain in Edmonton, he withdrew FRP application-Weeks later, after FRP program closed off, plaintiff posted to CFB Winnipeg-Plaintiff alleging grossly underemployed in Winnipeg; wife not able to find employment in Winnipeg; lost money on sale of house; cost of living higher in Winnipeg; inconveniences and mental distress; lost benefit of FRP package-Seeks judicial review, general damages of $75,000 and special damages-Military grievance procedure not complete bar to any further proceedings, save judicial review-Not plain and obvious and beyond doubt plaintiff will not succeed in tort aspect of claim-Court did not have discretion to treat action as judicial review proceeding, therefore claim for judicial review struck out-While Act providing for right of action against Federal Crown, Act not providing for right of action against servants of Crown-While servants of Crown have personal liability, however, personal liability would be pursuant to general law of province-In result, claim as against Major WolfeMilner and Chief Warrant Officer Dupuis struck out for want of jurisdiction-Similarly, Minister of National Defence not proper party as cannot be sued in representative capacity, nor may he be sued in personal capacity unless torts alleged relate to acts done by him in personal capacity-Defendants have satisfied onus only to extent statement of claim for relief by way of judicial review struck out and, as noted above, three defendants struck out-Balance of statement of claim, in negligence, not struck.