Court of Appeal

CASE NO.                                                   VOL. NO.                                                           PAGE

THE ATTORNEY GENERAL FOR                    - and -                                                          M.J.D.

CANADA IN RIGHT OF THE

DEPARTMENT OF NATIONAL

DEFENCE and HER MAJESTY

THE QUEEN IN RIGHT OF CANADA                                                                                            

(Appellant)                                                                                                                       (Respondent)

CA 165834                                                  Halifax, N.S.                                         BATEMAN, J.A.

                                                                                                                                                (Orally)

                         [Cite as: Canada (Attorney General) v. M.J.D., 2001 NSCA 13]

APPEAL HEARD:                             January 23, 2001         

JUDGMENT DELIVERED:            January 23, 2001

WRITTEN RELEASE OF ORAL:              

SUBJECT:                 Civil Procedure Rule 25.01(1)(a)

SUMMARY:              The parties applied to a chambers judge on an Agreed Statement of Facts to determine a preliminary point of law (Civil Procedure Rule 25.01(1)(a)) - namely, whether the respondent (plaintiff in the main action) was precluded by s.111 of the Pension Act, R.S.C. 1985, c. P-7 and/or  s. 9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C‑50 from suing the government for damages as a result of being raped by a fellow member of the Canadian Armed Forces, until she had exhausted her right to request a review or appeal the Minister's denial of her application for a pension.  The parties discovered after the chambers judge had rendered his decision that one of the Agreed Facts was incorrect.  The Crown asked that the chambers judge reconsider the matter taking into account the new fact.  The respondent would not agree that he do so.  Failing agreement of the parties, the chambers judge left the matter for appeal.

ISSUES:                     Appeal dismissed.  The question before us, which is whether the chambers judge erred in his decision on the merits of the application, is moot.  The decision of the chambers judge, due to the error in the Agreed Facts, is hypothetical and not responsive to the facts of this case.  We cannot say that the incorrect fact was not material to the judge's determination.  Should the parties remain of the view that this preliminary issue can be decided under Civil Procedure Rule 25.01(1)(a) the proper procedure is to apply to chambers for a decision on the corrected record.