A-631-89
Her Majesty The Queen in Right of Canada
(Appellant) (Respondent)
v.
Anthony Dennis Diotte (Respondent) (Applicant)
INDEXED AS: DIOTTE v. CANADA (C.A.)
Court of Appeal, Heald, Stone and MacGuigan
JJ.A.—Ottawa, December 4 and 7, 1990.
Armed forces — Appeal from Trial Division judgment
setting aside soldier's release — Soldier alleging lack of
procedural fairness, non-compliance with internal procedures
— Base commander, colonel, releasing soldier as discredit to
C.F. and for disciplinary problems — Trial Division granting
relief not asked in notice of motion for certiorari — Necessity
for colonel to be joined as party not raised by Crown in Trial
Division — Colonel should have been joined as high ranking
officer having interest in defending propriety of release —
Crown's position that procedural fairness unnecessary as sol
dier's appointment at pleasure — Colonel joined as party
respondent — Appeal allowed — Colonel to be served with
amended notice of motion.
Practice — Parties — Joinder — Appeal from Trial Divi
sion decision setting aside soldier's dismissal from Canadian
Forces — Whether colonel who released soldier should be
joined as party respondent in Trial Division proceedings —
Necessity for joinder not raised by Crown at trial — High
ranking officer having personal interest in defending propriety
of decision and authority to make same — Court Rules
conferring broad discretion to make amendments for deter
mining real question in controversy and to join any person who
should have been joined as party — Discretion exercised in
favour of joinder as no injustice to other side — Successful
appellant not awarded costs as colonel should have been joined
at earlier stage of proceedings.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 17(6).
Federal Court Rules, C.R.C., c. 663, RR. 5(a), 303(1),
1104(1), 1716(2)(b).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Carlic v. The Queen and Minister of Manpower and
Immigration (1967), 65 D.L.R. (2d) 633; 62 W.W.R.
229 (Man. C.A.).
REVERSED:
Diotte v. Canada (1989), 31 F.T.R. 185 (F.C.T.D.).
REFERRED TO:
Northwest Airporter Bus Service Ltd. v. The Queen and
Minister of Transport (1978), 23 N.R. 49 (F.C.A.);
Steward v. North Metropolitan Tramways Co. (1886),
16 Q.B.D. 556 (C.A.); Campbell et al. v. Moxness;
Co-operative Fire and Casualty Co., Third Party and 3
other actions (1974), 56 D.L.R. (3d) 137; [1975] 2
W.W.R. 64 (Alta. C.A.) affd. by [1976] 1 S.C.R. if;
(1976), 4 A.R. 123; 64 D.L.R. (3d) 766; [1976] 2
W.W.R. 384; 15 N.R. 423; Scott Maritimes Pulp Lim
ited v. B.F. Goodrich Canada Limited and Day & Ross
Limited (1977), 19 N.S.R. (2d) 181; 72 D.L.R. (3d) 680
(C.A.); Sperry Inc. v. Canadian Imperial Bank of Com
merce et al. (1985), 50 O.R. (2d) 267; 17 D.L.R. (4th)
236; 55 C.B.R. (N.S.) 68; 8 O.A.C. 79; 4 P.P.S.A.C. 314
(C.A.).
COUNSEL:
Geoffrey S. Lester for appellant (respondent).
Robert Houston for respondent (applicant).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (respondent).
Soloway, Wright, Ottawa, for respondent
(applicant).
The following are the reasons for judgment
rendered in English by
STONE J.A.: This appeal is from a judgment of
the Trial Division [(1989), 31 F.T.R. 185] ren
dered on December 20, 1989, whereby a decision
releasing the respondent from the Canadian
Armed Forces was set aside with costs.
The proceedings before the Trial Division were
commenced by an originating notice of motion
filed on February 2, 1989, in which the following
relief was requested:
... an Order in the nature of Certiorari to question a decision
dated November 25, 1987 by the Respondent releasing the
Applicant from the Canadian Armed Forces ....
The grounds for the relief sought were that the
appellant had failed to accord the respondent pro
cedural fairness and to have complied with other
matters of internal procedure in respect of a warn
ing, counselling or probation.
The respondent served in the Canadian Armed
Forces from September 30, 1980 to November 25,
1987. At the time of his release he held the rank of
corporal and was stationed at the Canadian Forces
Base in Baden-Soellingen in the Federal Republic
of Germany.
The release came about in this way. By a memo
randum dated October 9, 1987, prepared by Cap
tain J. C. Lawrence, a recommendation was made
that the respondent "be compulsorily released"
from the Canadian Armed Forces pursuant to
Item 5(f) in the table referred to in Article
15.01(01) of the Queen's Regulations and Orders
for the Canadian Forces) Captain Lawrence
expressed the view that the respondent's conduct
"has been a discredit to the C.F. and he has been
an administrative burden to the unit due to
administrative and disciplinary problems". This
recommendation was reviewed and considered by
Colonel K. J. Noonan who, in turn, prepared a
memorandum of October 22, 1987, to the Base
Commander, Colonel A. M. DeQuetteville, recom
mending the respondent's release.
Colonel DeQuetteville acted upon these recom
mendations on November 6, 1987. His decision is
contained in his memorandum of that date, the
principal features of which read:
1. I concur with the recommendations submitted in ref A.
2. It is clearly evident that Cpl Diotte has a total disregard for
the regulations and orders that govern the Canadian Armed
Forces. His performance and attitude have deteriorated to a
point where he can no longer be considered salvageable as a
I Chapter 15 of the QR & O pertains to the subject of
"Release". It is divided into several sections. Article 15.01(01)
which appears under Section 1 provides that: "An officer or
man may be released, during his service, only in accordance
with this article and table hereto". Item 5(f) of the Table
provides as a reason for a release that a member is "Unsuitable
for Further Service" and contains the special instruction that it
is to apply to "a non-commissioned member who, either wholly
or chiefly because of factors within his control, develops person
al weaknesses or has domestic or other personal problems that
seriously impair his usefulness to or impose an excessive
administrative burden on the Canadian Forces". The "factors"
referred to are further elucidated in Modification 13/87 to the
QR & O. By article 15.01(5)(d), when a man is released under
item 5(f) the notation on his record of service is to be:
"Honourably Released".
member of the Canadian Armed Forces. The absence of formal
action to place the member on recorded warning and counsel
ling and probation is acknowledged but considered understand
able in these circumstances. The ample time spent by senior
staff members in personally counselling Cpl Diotte is felt to
more than compensate for the formal counselling requirement.
3. In view of the above, the BP Adm O is directed to take the
necessary action to administratively release CO Diotte under
QR & 0 15.01 item 5(F).
The jurisdiction of the Trial Division to grant
the relief requested was put in issue and was
resolved in favour of the respondent by the learned
Motions Judge. He found that jurisdiction existed
under subsection 17(6) of the Federal Court Act
[R.S.C., 1985, c. F-7]:
17...
(6) The Trial Division has exclusive original jurisdiction to
hear and determine every application for a writ of habeas
corpus ad subjiciendum, writ of certiorari, writ of prohibition
or writ of mandamus in relation to any member of the Canadi-
an Forces serving outside Canada.
At an early stage of the hearing in this Court a
question was raised as to the need for Colonel
DeQuetteville to have been joined as a party in the
proceedings. Counsel for the appellant submits
that the relief granted by the judgment of the Trial
Division, viz., "the decision of Colonel A. M.
DeQuetteville made the 25th day of November
1987 discharging the applicant from the Canadian
Armed Forces be set aside;" was not, in point of
fact, requested in the notice of motion. That is
plainly so. He submits that Colonel DeQuetteville
ought to have been joined, and that certiorari
cannot lie against the Crown. It does seem evident
that the decision to release was in fact made by
Colonel DeQuetteville on November 6, 1987. Be
tween that date and the release on November 25,
1987, the necessary administrative paperwork had
obviously to be attended to pursuant to the direc
tion contained in paragraph 3 of Colonel
DeQuetteville's decision. That the respondent
desired to attack that decision is clear from para
graph 22 of his affidavit sworn in support of the
application. He there states that "I have intended
to have the decision to release me from the Armed
Forces reversed and to be reinstated in the Armed
Forces".
Counsel for the respondent submits that there is
no need to join Colonel DeQuetteville as a party.
The dispute, he says, is between the respondent
and the state and that what is important is that the
issues be placed before the Court by him and by
someone able to speak responsibly for the state. In
support, he cites views expressed in Carlic v. The
Queen and Minister of Manpower and Immigra
tion (1967), 65 D.L.R. (2d) 633 (Man. C.A.), at
pages 638-639. The relief in that case was sought
in an action and, in any event, the action did not,
as here, involve an attack upon a decision of a
military officer to dismiss a member of the
Canadian Armed Forces. Counsel asks, in the
event we should conclude that Colonel DeQuette-
ville's presence as a party respondent is required,
that we join him as such and that we then proceed
to determine the appeal on the merits. He
informed us at the hearing that the alleged necessi
ty of joining Colonel DeQuetteville was not raised
by the appellant in the proceedings below.
In the circumstances of this case, Colonel
DeQuetteville should have been joined in the
attack on the decision to release the respondent
from the Canadian Armed Forces. He held the
required rank and position at the time the decision
was made. As a high ranking career officer in the
Canadian Armed Forces he has also a personal
interest in defending the propriety of the proce
dure he adopted in deciding to release the respond
ent. The latter has gone so far as to have addressed
a letter dated March 14, 1988, to National
Defence Headquarters in which he states, rightly
or wrongly, that it "came as no surprise to me"
that Colonel DeQuetteville had denied both him
and his assisting officer the right to dispute the
case made against him and to offer his own evi
dence before the decision to release was made. 2
The implication is unmistakable. Colonel
DeQuetteville is entitled to an opportunity to
defend the propriety of his decision and his author
ity to make that decision in the manner it was
made having regard to the fact that, at the time it
2 Respondent's affidavit sworn December 13, 1988, Appeal
Book, Vol. 1, at pp. 11, 112.
was made, the respondent was a member of the
Canadian Armed Forces. 3
Colonel DeQuetteville may or may not wish to
instruct counsel or to make submissions. That is
for him to decide. Again, he may or may not wish
to associate himself with the principal position
taken, by the appellant, namely, that there was no
necessity to accord procedural fairness because the
respondent held an appointment at pleasure. It
would be wrong, counsel submits, for a civil court
to interfere in the matter because there was a lack
of jurisdiction to do so and, assuming jurisdiction
did exist, that it should not have been exercised in
favour of the respondent because the manner in
which a decision to release an individual from the
Canadian Armed Forces is arrived at is best left to
military authorities as a matter of Crown preroga
tive over those Forces. It would not be proper for
us to comment on this position in the absence of
the decision-maker, Colonel DeQuetteville.
We have next to determine whether, at this
stage of the proceedings, the Court may add Colo
nel DeQuetteville as a party respondent. The Rules
of the Court [Federal Court Rules, C.R.C., c.
663] confer a fairly broad discretion to make
amendments for "the purpose of determining the
real question in controversy, or of correcting any
defect or error" (Rule 303(1)), or "for the purpose
of determining the appeal or other proceedings, or
the real question in controversy between the par
ties as disclosed by the pleadings, evidence or
proceedings" (Rule 1104(1)), and to join any
person "who ought to have been joined as a party
or whose presence before the Court is necessary to
ensure that all matters in dispute in the action may
be effectually and completely determined and
adjudicated upon" (Rule 1716(2)(b)). 4 I am satis
fied the discretion conferred is ample enough to
3 During the course of his submission, counsel for the appel
lant informed the Court that he had been able to reach Colonel
DeQuetteville by telephone but could not secure instructions in
the matter.
4 While Rule 1716(2)(b) pertains to an "action" which, by
definition, does not include "an application or an originating
motion" (Rule 2(1)), Rule 5(a) does empower the Court to
determine a matter of practice and procedure not otherwise
provided for "by analogy ... to the other provisions of these
Rules".
enable the joinder of Colonel DeQuetteville at this
stage of the proceedings.
Should this discretion be exercised in favour of
the joinder? I think it should. The test as applied
in this Court would appear to be whether a par
ticular amendment can be made at this stage
"without injustice to the other side". 5 No injustice,
in my view, would befall the appellant by adding
Colonel DeQuetteville as a party respondent so
that the Court may determine the real question in
controversy. I would, therefore, join Colonel A. M.
DeQuetteville as a party respondent in the Trial
Division proceedings and would amend the style of
cause accordingly.
I also agree that the notice of motion should be
further amended so that, at the end of the day, the
Trial Division will be enabled, if it should so
decide, to set aside the decision of November 6,
1987, the release of November 25, 1987 and the
certifying document of service which was issued to
the respondent on December 9, 1987 and which
states that he was honourably released from the
Canadian Armed Forces on November 25, 1987.
The appellant seeks her costs throughout. That
is a matter for the Court's discretion. Unfortunate
ly, the existence of the important technical ob
stacle discussed above now stands in the way of the
Court disposing of the appeal on the merits, which
were fully argued. The appellant contends that the
obstacle was of the respondent's own making by
failing to join Colonel DeQuetteville, but I think
that is only partially so. It is apparent that the
propriety of the appellant being joined was raised
by her counsel in the Trial Division. However, at
no time did he suggest, as present counsel does,
that Colonel DeQuetteville should have been
joined at that time as a party respondent. There
5 Northwest Airporter Bus Service Ltd. v. The Queen and
Minister of Transport (1978), 23 N.R. 49 (F.C.A.), per Urie J.
quoting Lord Esher M.R. in Steward v. North Metropolitan
Tramways Co. (1886), 16 Q.B.D. 556 (C.A.), at p. 558. And
see also Campbell et al. v. Moxness; Co-operative Fire and
Casualty Co., Third Party and 3 other actions (1974), 56
D.L.R. (3d) 137 (Alta. C.A.) (affd. by the Supreme Court of
Canada, [1976] 1 S.C.R. y); Scott Maritimes Pulp Limited v.
B.F. Goodrich Canada Limited and Day & Ross Limited
(1977), 19 N.S.R. (2d) 181 (C.A.); and Sperry Inc. v. Canadi-
an Imperial Bank of Commerce et al. (1985), 50 O.R. (2d) 267
(C.A.).
was, of course, no obligation upon counsel to do so.
Even so, it is regrettable that the stance so well
defined and so fully and clearly stated before us
was apparently not taken in the Court below. Had
that been done, it is probable that Colonel
DeQuetteville would have been joined at that early
stage and, accordingly, that the costs of the pro
ceedings both here and in the Trial Division would
have been avoided. In these circumstances, I would
make no order as to costs.
I would allow the appeal without costs and
would (a) set aside the judgment of the Trial
Division rendered December 20, 1989, (b) order
that the style of cause in the originating notice of
motion herein be amended by adding the name of
Colonel A. M. DeQuetteville as a party respond
ent, (c) order that the notice of motion be further
amended by deleting therefrom the eighth, ninth
and tenth lines thereof and by substituting the
following therefor:
... to question a decision dated November 6, 1987 made by the
Respondent DeQuetteville releasing the Applicant from the
Canadian Armed Forces and to further question the Appli
cant's release of November 25, 1987 and the Certificate of
Service dated December 9, 1987, which is requested on the
following grounds:
and (d) order that the respondent Diotte serve
Colonel DeQuetteville in accordance with the
Rules of Court with the notice of motion as so
amended.
HEALD J.A.: I concur.
MACGUIGAN J.A.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.