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Crown law - Crown liability - Administrative law - Judicial review - Appellant commencing action in damages against federal Crown in Federal Court and challenging lawfulness of mandatory disability plan and claiming breach of fiduciary duty, bad faith and unjust enrichment - Whether the Federal Court has jurisdiction to hear the Appellant’s action for damages against the Crown - Federal Courts Act, R.S.C. 1985, c. F-7, ss. 18, 18.4(2).

The Appellant was a member of the Canadian Forces for over nine years until his compulsory release for medical reasons in December 2003. When he was released, he qualified for a long-term disability pension under a mandatory disability plan, which was created pursuant to s. 39 of the National Defence Act, R.S.C. 1985, c. N-5. Because of a particular deduction in the plan, the Appellant receives 59 percent of his income before his release from the Forces. In March 2007, he filed an action against the Crown with the Federal Court, challenging the lawfulness of the plan and its constitutional validity. He alleged that it infringes his right to equality under s. 15 of the Canadian Charter of Rights and Freedoms, and claimed that the Crown did not fulfil its obligations under public law, breached its fiduciary duty towards him, acted in bad faith and was unjustly enriched by its conduct. He sought relief in the form of various declarations, orders for reimbursement, and damages. The Appellant subsequently amended his action asking that it be certified as a class action. The Respondent, relying on Canada v. Grenier, 2005 FCA 348, objected to the action on the ground that the Appellant should have proceeded by way of judicial review since the challenge involved a decision of a “federal board, commission or other tribunal” within the meaning of the Federal Courts Act, R.S.C. 1985, c. F-7. The Federal Court dismissed the objection and certified the proceeding as a class action, but the Federal Court of Appeal overturned the decision, holding that since the Appellant’s claim sought to impugn the lawfulness of a joint decision of the Minister of National Defence and the Chief of the Defence Staff, Grenier applied and a prior judicial review proceeding was necessary. It granted the Appellant 30 days to serve and file an application for judicial review and suspended the action until a final decision was made on the application.