The a'lthor af the communication «initial l&tter dated 7 Oecemt.er 1981 and further letters dated 26 June 1982, 27 February 1983, 10 June 198], 13, 14, 19 and 20 June 198", I) Decemher 1984, 6 and 30 January 1985, 8 and 14 February 1985 and 27 May 1(85) It ClInaclhn citizen, livinQ lit preBent in Cowanav1l1e, Province ot Quebet~, Canad", "Ue<dnq that he 18 11 victim of a hre"ch by Ca'HIc1a of articles 14, oarlluraph 1, "nd 26 of the International Covena~t on Civil "nd Political Rlqhts. 'rhe mllln fllcts unde-r1yinQ the author 'a clllima /Ire as tolloW91
On 1 .Ju1y 1967, Ilt the aqe of 36, the author was dhJml,u,ed from the Canadian Army after 11) years ,~f service. It was al1ltQed bv the competent authoriti.s th.t he Buffered from ment"l diaorders. RequeAtA bV the author for more flpecitic information lI00ut the medical diaunoRifl were repeatedly declined b'l the Army.
2 ~;ven before he hn(\ heen offici ..lly dlflcharQed, the author appl.ied for. "dlRlIhility" pension. "his reoueRt WllR rll)"cted by t'he Canadll\n Pen. ion Commis.ion by It ']~iAlon nf 11 duly lq67. 'I'het Comml"8lon he1" that thl!' ISuthor'lI l1if1abllity nltl thee "rORe {Jut of, noc was directly conn"cted ",ith, hie mt I itarv ••rvic., as rpquireo hy the Pension Act (1952). On l'Iopeal, thiA de<:I"lolI was confirmed on H Much 196'J. 2.\ After the PlmRton Act WIIlI1 amenc'll'!d i.n 1971, the author rel10wed his requ••t tor a penJlllon. Aq"tn, he WIIS unlluccellRful. Two consecutive appl1cfttionl'l to the C.,nll"I,1O Pem'lan CommlRuton wer"" rejected. All a next atep In the pr(x~.~lnQ., the lIut.hor ..,pp] led to M, 1'~ntH.leml!nt BOIlrd of the Commission which, 0n Ij Novemt".r 1977, ..,190 <l..,ve .., neQlItive rllO(~t"ion. Plna11y, the ...uthor ""wellletJ to the PenlJion R.vi_ Board whlch, lIft'IH 11 hC'!l!rlnq on 10 July Ilj.,q. confirmed the ellir1il!r rulin'111 In Its -14'l-
SInce the author hac1 never had I'ICC.__ to hI. medical reeor<1a. he /IRked to he prov1c'led with all releVAnt. inform/lltion .fter hi. appeal had heen definitively relected. On7 December 19'19, 270 pl:lqe. of c1ocllment" were Rent to him. However, the relevi'lnt mediCAl information ha<1 heen flxelude<'l. Some element. lIf the medic,.l file were latpr ml'l<1e aVAilahle to the Author in JanUAry 1981, after he had auhmittect the communication to the Humlln Riqhts Committee. 1'0 "ate. however, t.he lIuthor haR not hlll1 the opportunity to aee hi. me<1!cal .1011s1er in itH entirety. All hif! llppl1GAtionR to that efrect were unsuceesRtlll. ]. I 'rhe author now challenqell the proceedinq. that took place hetore the I'enllion Review Doard liS violaUnq <1ullranhloll under ArtIcle 14, paraqrllph
0,' the Covenant. He mlllnt41n8 that for several rBaROns he waa not qrant~1 "~ tair public hearinq hy 4 competent, in<1epen<1ent and impartiAl tribunal" in the 8en~e contempllltel'l by that provision. He ('laimll that, firllt of all, he lIhoul,1 hllve been inf'ormec1 in ,1lttail of thft exact oat Ire 01' the ment"l diwease from which hl'! wall alleq8<'l to he f1ufferinq. In "ddit:ion, he BtAt..t.R thAt he waR not allowltc1 to "t1:en<1 the hC!'lIrlnq t>efore tho BOarc1. Hlr-< lawyer, who ha<1 heen I\ppointe<1 111\11 p"id hy t.he Cana/1ian Government, 11180 refulled to <1iRC1I811 flllly with the author thP. 1l1Q/1klll IIspects of the caRe. Fin, lly, the llllthor aBsertlll thllt the Board <10UA not qllllll Uy 118 an independent And impartial tribunal ainee it ill ma<1e up of civil Hervantll of the executive brAnch ot <lovernment. ]. The author elaima that the refusal to qritnt him IIC';e88 to his medi(~1I1 fllft amountfl to 11 violatIon of ~rticle 26 of' the Covenllnt.
'rhe Can6c1ian Government requo"tR thn, the communication he <1ecltued inadmissible. Aa tar all the proceedinq8 hefore the Pomtion Review I1oarc'l 1Ir0 concerned, it contenet8 pr imllr lly that the cOfI\rlllint" of thlt "ut hor "r e out .. idft the IIcope of appliclltion of the Covenllnt ratione nlateriae heCIIUKlt thouCt procee<'linqll <1id not conlltitute a "_ult lit law" all envillaged under Article 14, parllqraph 1. 1)1' thl' Covenant. In ad<1itlon, and 111110 with req/lrc'l to the Alleqed viollltion of 11 riqht 1"0 ACGellR to the cOlllpletft perllonal o1o.."ier, it clllimll that c'lome8tic remedieB h...ve not been exhAullted. It "tllt.OIl that the decillion of the Pen.ion Revi_ 80ar<1 could hav" hpen chllllen4ed heror., the Federal Court of ApptMI, 1I0<10r IIrtkle 7." (I) of the Federal COllrt Act. Finally, t:he ('.ov.rnment r"Ject.. all untouno1ft<) the author 'n objcetinnll to tht) proceel1inqll hefol<t t.he "enRion Review UOIlf'lI. s. Thl!! Work inq GrollP of the Human HiqhtR ("ommi tteo, m91tt.1nq "ur In'l t.he Committee's twentv-thinl .Io.... ion nn 9 November 1984, conAI,htrecl thllt, .feBpite t.he <1"t"iIOl1 information provic1oo hy the /lut.hor lInd by the Btlllte pllrt.y. the Commit.t.tle <1i<1 not vet hllVIll lit ItA difllp<lIo,1 1111 the leqal IInd factual element" rflquire,1 (or Its dlwl .. ion on the ,,<ImhlRihility of the communiclltlon. In pArticular, It con!li,1(>r(fc1 thllt thf~ ,I"clllioll mi'lht require 11 tlndinq ..... to whether thlt clllim whIch the lIuthor pursued In thl!! lallt instl\ncft hefore the J>ennion R"vi_ BOllrd wlln a ".IIIt: ~t 1.lIw" within th meanInq of article 14, pllra4raph 1, of the Covftn"nt. The Workinq Gro1lp of tht! Comm1t.tee therefore requQIlt.ect the A'lthor IIn,l the Htllto pllrty to reRr:OO<' to tho llent of thtJlr "oilltIeR to the followlnq quwtlti<ln", -146- (b) Are there different categories of civil servants? Does Canada make a distinction between a statutory regime (under public law) and a contractual r~ime (under civil law)? (c) Is there a distinction, in Canadian domestic law, between persons employed by private employers under a labour contract, and persons employed by the Government? (d) (i) Has any decision of the Pension Review Board ever been challenged before the Federal Court of Appeal? (ii) What has been the outcome of such proceedings, if any? (iii) Do decisions rendered by the Pension Review Board explicitly mention that they may be challenged before the Federal Court of Appeal? (iv) Did the decision of the Pension Review Board of 15 Auqust 1979 in the present case contain such an indication? (v) Did the counsel appointed by the Government of canada to protect the author's interests know that the remedy provided for in article 28 (1) of the Federal Court Act could be resorted to in the proceedinqs under consideration?
In its submission of 22 January 1985, in reply to the committee1s interim decision,' the State party explained that within the Canadian legal system the relationship between a member of the armed forces and the Crown was classified as a matter of public law. Soldiers were placed under a statutory r~ime as opposed to a contractual arrangement. This meant, inter alia, that members of the armed forces could not recover their pay through the ordinary courts.
In regard to the actual exercise of the remedy granted under article 28 {l} of the Federal Court Act, the State party points out that, since 1970, 10 decisions of the Pension Review Board have been the subject of applications for review. Six of those appeals had been referred to the Federal Court of Appeal in 1984 and were still pending, but in one case (War Amputations of Canada v. Pension Review Board, (1975) C.F. 447) a decision had been handed down in 1975.
In addition, the State party states that Maitre R. A. pinsonnault, c.r., who was representing the author in the. proceedings before the Pension Review Board, was well aware of the remedy under article 28 (1) of the Federal Court Act. As to the reason why Miitre Pinsonnault had not sUQgested that the author avail himself of that remedy, the State party points out that the members of the Bureau of Pensions Advocates are not entitled to represent parties before the Federal Court of Appeal.
Respondinq to the interim decision of the Committee, the author transmitted a letter from the National Defence Headquarters, dated 7 February 1985, in which it was indicated that the rights and obliqations of the members of the armed forces "relate to public law as opposed to private civil law". ·It is to be noted that the decisions of the Board are final and enforceable for the purposes of the Pension Act. However, the Pension Review Board ruay, if new facts are brought to its attention or if it discovers an error in the exposition of the facts or in the interpretation of a rule of law, quash or amend that decision. w
In letters which the author received from Miitre Pinsonnault (dated 22 AuquSt 1979) and which his lawyers received from the Chief Pension Advocate of the Bureau of Pensions Advocates (dated 17 September 1979) after the final decision of the Pension Review Board, no mention was made of the possibility of an appeal to the Federal Court of Appeal. Both of these letters confined themselves to discussinq the possibilities of reopeninq the proceedinqs before the Pension Review Board.
Before considering the merits of any claim eontained in a communication, the Human Rights Committee must determine whether the communication is admissible under the Optional Protocol to the Covenant.
With regard to the alleged violation of the guarantees of wa f&ir and public hearinq bv a competent, independent and impartial tribunal established by law", contained in article 14, paragraph 1, of the Covenant, it is correct to state that those guarantees are limited to criminal proceedings and to any ·suit at law·. The latter expression is formulated differently in the various language texts of the Covenant and each and everyone of those texts is, under article 53, equally authentic.
The trava~x preparatoires do not resolve the apparent discrepancy in the various language texts. In the view of the Committee the concept of a wsuit at law· or its equivalent in the other lanquage texts is based on the nature of the ri4ht in question rather than on the status of one of the parties (governmental, parastatalor autonomous statutory entities), or else on the partlc~lar forum in which individual leqal systems may provide that the right in question is to be adjudicated upon, especially in common law systems where there is no inherent difference between public law and private law and where the courts normally exercise control over the proceedings eithe~ at first instance or on appeal specifically provided by statute or else by way of judicial review. In this regard, each communication must be examined in the light of its particular features.
In the present communication, the right to a fair hearinq in relation to the claim for a pension by the author must be looked at globally, irrespective of the different stepS which the author had to take ~~ order to have his claim for a pension finally adjUdicated. 9v4 The Committee notes t.hat the author pursued his claim successively before the Canadian Pension Commission, an Entitlement Board of the Commission and, finally, the Pension Review Board. It is clear frOll! the observations made by the State party on the author's communication that the Canadian legal system SUbjects the proceedings in those various bodies to judicial supervision and control, because
In the view of the committee, therefore, it would appear that the Canadian legal system does contain provisions in the Federal COurt Act to ensure to the author the riqht to a fair hearing in the situation. Consequently, his basic allegations do not reveal the possibility of any breach of the COvenant.
The committee, th~refore, concludes that th~ a~thor has no claim under article 2 of the Optional Protocol and decides: The communication is in&dmissible. Submitted by Messrs. Bernhard Graefrath, Fausto Pocar and Christian Tomuschat concerninQ the admissibility of communication No. 112(1981, Y.L. v. Canada
We concur in the view expressed by the majority of the Committee that the communication is inadmissible. But we do not share the reasons on which that view is based.
The majority view stresses in paragraph 9.4 that the Canadian legal system, in accordance with article 14, paragraph 1, of the COvenant, provides sufficient protection for a claim of the kind pursued by the author, because an appeal could be made to the Federal COurt of Appeal. However, the availability of this legal remedy cannot be held against the author. In the letter by which the Pension Review Board informed the author of its decision as being final and enforceable, no mention was made of the possibility of such an appeal to a jUdicial body. Moreover, the lawyers who acted for the author and who are civil servants specificallv appointed to represent claimants before the Pension Review Board did not advise the author accordingly. Under these circumstances, canada is estopped from asserting that either, procedurally. the author has failed to exhaust local remedies or that. substantively. the reauisite guarantees under article 14, paraqraph 1, of the Covenant have been complied with.
However. th~ dispute between the author and Canada does not come within the purview of article 14, paragraph 1, of the COvenant. The guarantees therein contained apply to the determination both of any criminal charge and of riqhts and obligations in a suit at law. Whereas this phrase in its English and Russian versions refers to proceedings, the French and the Spanish texts rely on the nature of the right or obligation which constitutes the subject-matter 9f the proceedings concerned. In the circumstances of the present case, there is no need to clarify the common meaning to be given to the different terms used in the various languages which r !'ilder article 53 of the CO-Jenant, are equally authentic. It is quite clear tra. the submissions of both the State party and the author that in Canada the relationship between a solidier. whether in active service or retired, and the Crown has many specific features, differi~g essentially fra. a labour contract under Canadian law. In addition. it has emerqed that the Pension Review BOard is an administrative body functioning within the executive branch of the Government of Canada, lacking the quality of a court. Thus. in the present case. neither of the two criteria which would appear to determine conjunctively 'the scope of article 14, paragraph 1, of the COvenant is met. It must be concluded. therefore, that proceedinqs before the Pensiqn Review Board, initiated with a view to claiming pension riqhts, cannot be challenqed by contending that the requirements of a fair hearinQ as laid down in article 14, paraqraph 1. of the COvenant have been violated. Bernhard Graefrath Fausto Pacar Christian Tomuschat