A ground-breaking Federal Court of Appeal decision impacts all retired military personnel
by Edward W. Claxton
From Volume 23 Issue 3 (April 2016)
A ground-breaking court decision received scant media coverage, but it could render a tremendous impact on retired military personnel. In February, the Federal Court of Appeal ruled that anyone whose name is on the Canadian Armed Forces Supplementary Reserve List — even if they receive no pay or benefits — is still a public servant.
At issue is the case of Louis Brown, who retired from the military in 1993 to start his own company that was in the business of manufacturing chemical resistant shelters. In 1999, Brown patented his technology for both Canadian and U.S. markets. Brown offered his shelters to Public Works in 2009, but they promptly took his patent and contracted a U.S. firm to build the shelter instead. The rationale offered by Public Works, and upheld by the Federal Court, was that since Brown was still listed on the Supplementary Reserve in 1999 when he applied for the patent – he was technically still a public servant – and therefore the patent belonged to the Crown.
Following is the letter barrister and solicitor Edward W. Claxton wrote to the Ministers of National Defence, Veterans Affairs and Justice, outlining the dangerous precedence this ruling has on members of the Canadian Armed Forces.
On March 13, 2016 I heard the news concerning the Federal Court of Appeal Ruling in the matter of Louis Brown v Canada.
I was a member of the 2PPCLI cadets and became a Master Cadet. When I was finished with the cadets I joined the 20th Field Artillery Militia Regiment in Edmonton. When I moved to Ottawa in 1966, I transferred to the 30 Field Artillery Militia Regiment in which I served approximately five years. My late father, Norman L. Claxton, CD, was a “boy soldier” who, upon turning 18, entered active service in January 1945. He continued in service after WWII and served two terms in Korea. He remained in the military until his retirement. My grandfather Edward J. Claxton served with the 2nd Canadian Battalion in WWI. He was twice wounded. He was with that battalion on its entry into Germany after the armistice. He continued in the militia after the war and became the Regimental Sergeant Major of the Brockville Rifles.
As a militia veteran, I was apprised of the Supplementary Reserve List. So far as I am aware, the only purpose of the Supplementary Reserve List is to have an inventory of trained personnel. The only obligations are for call up if one has special skills or abilities needed by the military or, in case of a declaration of war, a person on the Supplementary Reserve List (commonly known as the Zed list) can be called up for the defence of Canada, a role which I would have undertaken if our country needed my services.
That the Government of Canada would stoop so low as to resort to the Public Service Invention Act to claim rights to a veteran’s intellectual property is disgusting. With all due respect to the Federal Court of Appeal, I feel that their judgment is wrong in law.
It would be better for everyone if the Government of Canada would forthwith disavow this judgment and make it clear, by legislation or regulation, that a person’s status on the Supplementary Reserve List does not constitute one as being a “public servant” for the purposes of the Public Service Invention Act or any other Act. If one is called to active service then one has the status of a public servant. To assert that a person on the Supplementary Reserve List is a public servant at all defies common sense; indeed, it is nonsense.
For one’s service to Canada in the military a person apparently becomes disentitled to intellectual property at the whim of the government! You may rest assured that I will do my utmost to “rally the troops” to protest this outcome. I am going to do everything in my power to excoriate the government for this outrageous and unlawful appropriation or expropriation of intellectual property. In a ‘free and democratic society’ it is unacceptable for the government to expropriate the intellectual property of a citizen without compensation. To do it on the pretext that the person is a “public servant” because of his or her status on the Supplementary Reserve List is an affront to every veteran in Canada.
As a lawyer, I will refrain from making any comment on the faculties of judgment exercised by the Federal Court or Federal Court of Appeal. If, however, I were advising a client in a similar matter I would be advising an appeal.
As regards the Government of Canada, I have no hesitation in denouncing, in the strongest possible terms, its unmitigated duplicity in asserting that retired military personnel are public servants because of their status on the Zed List.
I have already taken my first step, to let Mr. Brown know that I support him and that I will be willing to contribute funds toward an appeal to the Supreme Court of Canada.