Leblanc v. Canada, docket T-2367-96

        

Date: 19981223

Docket: T-2367-96

OTTAWA, ONTARIO, WEDNESDAY, DECEMBER 23 1998

Present:      The Honourable Mr. Justice Marc Nadon

Between:

     SYLVAIN LEBLANC

     Applicant

     - and -

     HER MAJESTY THE QUEEN and

     DEPARTMENT OF NATIONAL DEFENCE

     AND VETERANS AFFAIRS

     Respondents

     - and -

     OFFICE OF THE COMMISSIONER OF OFFICIAL LANGUAGES

     Third Party

     ORDER

     The applicant"s application is dismissed with costs to the respondents.

     MARC NADON

     JUDGE

Certified true translation

M. Iveson

        

Date: 19981223

Docket: T-2367-96

Between:

     SYLVAIN LEBLANC

     Applicant

     - and -

     HER MAJESTY THE QUEEN and

     DEPARTMENT OF NATIONAL DEFENCE

     AND VETERANS AFFAIRS

     Respondents

     - and -

     OFFICE OF THE COMMISSIONER OF OFFICIAL LANGUAGES

     Third Party

     REASONS FOR ORDER

NADON J.:

[1]      The applicant is applying for a remedy under section 77 of the Official Languages Act, R.S. 1985, c. 31 (the Act). The applicant alleges that the respondents did not respect his language rights and that he was accordingly unjustly released from the Canadian Forces (CF) because of the infringement of his language rights.

[2]      The applicant criticizes the CF for not providing to him in French the services it offers to its members for the treatment of alcoholism. Specifically, the applicant submits that the CF refused to offer him in French the third step of the program which is offered to its members for dependence on alcohol. At paragraph 38 of his affidavit, the applicant explains the three steps of this program as follows:

     [TRANSLATION]

38.-      There are in fact three steps in the treatment for dependence on alcohol offered by the Canadian Forces:

The first step is a diagnosis by the Base doctor and the Base addiction counsellor (B.A.C.);

The second is a thirty (30) day stay in a clinic;

The third and most important is the follow-up which lasts one year . . . .

[3]      The applicant is asking this Court to order his reinstatement in the CF, specifically at CFB Val Cartier, near Quebec City. He is requesting, inter alia, the amount of $200,625.00 as a remedy for damages resulting from an infringement of his language rights.

[4]      The respondents submit that the applicant"s remedy is not sound. In their view, the applicant"s release from the CF is unrelated to the alleged infringement of his language rights. A summary of the relevant facts is required for a decision in this matter.

[5]      The applicant became a member of the CF in 1978 when he joined the Royal 22e Régiment. He was promoted to the rank of Master Corporal in April 1984 and Sergeant in 1986. The applicant was transferred in 1991, at his request, to the airborne regiment stationed at CFB Petawawa in Ontario. Married in 1982 and the father of two children, his wife left him in October 1991, when his regiment was to leave for Morocco.

[6]      On December 16, 1991, the applicant was promoted to the rank of Warrant Officer, and was accordingly transferred to CFB Gagetown in New Brunswick to fill a Warrant Officer post at the Infantry School on the base.

[7]      The applicant left Petawawa on February 10, 1992 for Gagetown. His wife and children did not join him as the applicant"s wife had custody of the children under a decree of judicial separation. Under this decree, the applicant was also required to pay support for his children.

[8]      Soon after his arrival at Gagetown, the applicant met the Commandant of the infantry school at the base, Lieutenant-Colonel Tymchuk.

[9]      Starting in September 1992, the applicant sought to leave the CF. On September 8, 1992, the applicant filed an application for early retirement under the CF reduction program. In support of his application, he stated:

     [TRANSLATION]

RE:      REQUEST TO APPLY TO THE FRP/FRP [SIC] PROGRAM

1.      I, 254 495 872 WO S LEBLANC, WISH TO APPLY FOR EARLY RETIREMENT UNDER THE FRP/PRF PROGRAM OFFERED BY THE CANADIAN FORCES.

2.      THE FRP PROGRAM IS AN OPPORTUNITY FOR ME TO LEAVE THE FORCES FOR THE FOLLOWING REASONS:

(a)      I DO NOT INTEND TO EXTEND MY CAREER BEYOND 20 YEARS, IN ANY CASE.

(b)      TO ALLOW ME TO CONTINUE MY EDUCATION RIGHT AWAY.

(c)      AS I AM NOW DIVORCED, MY OBLIGATIONS HAVE CHANGED AND ARE FORCING ME TO ALTER MY CAREER PATH.

3.      I WISH TO RECEIVE ANY INFORMATION AVAILABLE ON THIS MATTER.

[10]      His application was denied because he did not have the number of years of service required to take advantage of this program.

[11]      On December 3, 1992, the applicant requested a transfer to Quebec City for the following reasons:

     [TRANSLATION]

RE:      REQUEST FOR TRANSFER TO QUEBEC CITY

1.      As my FRP application was denied, I am requesting a rapid compassionate transfer to Quebec City (Val Cartier or EC/R22eR or vicinity).

2.      There are several reasons. They include:

(a)      I have no ties to Gagetown and I go to Quebec City every weekend to see my fiancée and my family.

(b)      My children live in Gatineau near Ottawa and I have only been able to see them twice this year.

(c)      My career path has accordingly been altered and I can make room for others who will be more effective. I intend to take night classes at the University again.

3.      I await your reply . . . .

[12]      The applicant met the base social worker on February 5, 1993, concerning his request for a transfer on compassionate grounds, at Lieutenant-Colonel Tymchuk"s request. Following the meeting, the social worker signed a report addressed to Commandant Tymchuk, dated February 11, 1993 . The report reads as follows:

Reference:      A.      Memorandum by WO LeBlanc, 03 Dec 92 (enclosed)

B.      Telecon A/ASWO/Adjt Inf School 21 Jan 93

C.      CFAO 20-4 (R)

1. (PB)      As requested at Reference A and B, the enclosed comments are provided to assist with a decision in respect to the subject request. WO LeBlanc was interviewed by the undersigned 05 February 93. The member is requesting a compassionate posting to CFB Valcartier to be closer to his two children, whom he has only seen three times since October 91. He would also be closer to his fiancée and his familly [sic] in Quebec City.

BACKGROUND

2. (PB)      WO LeBlanc joined the Canadian Forces in June 78, and was posted to CFB Gagetown in February 92. He is presently employed with the Infantry School.

3. (PB)          WO LeBlanc married in August 82, but has been separated since October 91. He and his wife, Lyne Bouchard, have two children, Sylvain (age 13) and Cédric (age 8). Since October 91, Lyne has moved to Gatineau, Quebec with their sons on a permanent basis, which makes it extremely difficult for WO LeBlanc to see his sons regularly.

4. (PB)      In November 91, WO LeBlanc met his present girlfriend who resides in Quebec City. Since his arrival at CFB Gagetown in February 92, this client has been travelling to see his girlfriend every week-end when possible. He does not own a motor vehicle, therefore, he must find his own transportation which can get be be [sic] very expensive.

5. (PB)      WO LeBlanc"s financial status is not encouraging, mostly because of the financial burden placed on him by the separation agreement with his wife. He is now fully responsible for all debts from the marriage.

6. (PB)      This client has had a drinking problem in the past, but has been able to refrain from it since December 91. He has admitted to being tempted at times, but has been able to find the strength to control his actions.

ASSESSMENT

7. (PB)      WO LeBlanc seems to be having alot [sic] of difficulties adapting to the distance between him and his girlfriend. He has shown some signs of situational depression mainly because of this, and also the separation from his two children. This client is a prime candidate for returning to alcohol and possibly a suicide attempt.

8. (PB)      Since WO LeBlanc does not have any family or dependents in this area, he seems to have lost interest in everything, even his work. He needs to feel the presence of loved ones and also needs to be able to communicate with them on a regular basis for his well-being.

RECOMMENDATIONS

9. (PB)      In view of the comments as outlined above, it is recommended that WO LeBlanc"s request for a posting to CFB Valcartier be granted for compassionate reasons, if not necessarily a compassionate posting. In addition, should this soldier"s request be supported, then WO LeBlanc would require professional counselling at CFB Valcartier to work on his problem-solving skills.

[13]      When he received this report, Lieutenant-Colonel Tymchuk wrote the following on his copy of the report:

ã NTF

1.      I cannot accept this report. There is absolutely no indication that the criteria of CFAO 20-4 have been applied to this case in the determination of a recommendation for a compassionate posting.

2.      After consulting A/ASWQ the Adjt Inf School cfm [confirmed] the recommendation of compassionate posting was based solely on the comments made concerning suicide, depression, alcoholism.

3.      There is no indication that a posting to Quebec would solve WO LeBlanc"s fin[ancial] problem or result in him seeing his children more often.

4.      WO LeBlanc must solve his problem in some other way (eg, remain one more year or take release).

T

Cmdt

12 Feb 93

[14]      As he suspected that his transfer request would be rejected, the applicant submitted a request for release from the CF on the same day he met the base social worker. This request reads as follows:

     [TRANSLATION]

RE          REQUEST FOR RELEASE

REF      a. MEMOS DATED 08 SEPT 82 AND 03 DEC 92

1.      I, C 37 819 449 (254 495 872), WO S. LEBLANC, WISH TO BE RELEASED FROM THE REGULAR FORCE IN ORDER TO RETURN TO QUEBEC CITY, AS A TRANSFER IN THE SUMMER OF 93, IN ACCORDANCE WITH MY REQUEST DATED 03-12-92, APPEARS IMPOSSIBLE.

2.      AS I APPLIED FOR THE FRP ON 8 SEPTEMBER 1992, I WOULD ASK YOU TO CONSIDER THAT DATE AS THE DATE OF MY RELEASE. FURTHERMORE,

a.      I STILL WISH TO SERVE THE FORCES BUT WITH THE RESERVE IN QUEBEC CITY;

b.      AT THE SAME TIME, I WILL RETURN TO SCHOOL;

c.      I WILL BE ABLE TO GET MY LIFE BACK IN ORDER, FOLLOWING MY DIVORCE.

3.      I WOULD APPRECIATE RECEIVING AN ANSWER AS SOON AS POSSIBLE IN ORDER TO BEGIN SEVERAL ADMINISTRATIVE ARRANGEMENTS FOR YOUR APPROVAL.

[15]      After he received the social worker"s report, Commandant Tymchuk met with the applicant. His memorandum concerning this meeting indicates the following:

1.      Interview was cordial but there was no mov[e] on either side. WO LeBlanc cont[inued] to see only two options (comp[assionate] posting or release) which makes it impossible to help him.

2.      He mentioned he was unaware of the franco AA gp [group] at communauté St Anne. Ensure he is made aware and that, if nec[essary], we provide for him to attend. Also, cfm [confirmed] he has not yet had ARC. I want WO LeBlanc to have an interview with BDEC.

3.      I will wait one wk [week] before processing release.

T

                     Cmdt

[16]      In accordance with the administrative order CFAO 19-31, the applicant met with one of the base doctors on February 12, 1993, in order to be authorized to voluntarily enter a clinic for alcohol treatment. I have noted the following points from the doctor"s report:

"      "wife left him October 19, 1991 - 3 weeks later quit cold turkey - ø alcohol since";

"      "describes severe physical/psychological withdrawal symptoms";

"      "lately feeling + + cramps alcohol but strongly adamant re ø drinking";

"      "impulsive to hit someone as very frustrated, plus stress ref. posting";

"      "has new girlfriend , good relationship but she lives in Quebec city";

"      "stress; wife child support, cannot afford vehicule [sic] - difficulties getting rides to Quebec city each week-end - apparently, no posting available this year";

"      "frank discussion";

"      "feels needs help to stay sober forever";

"      "alcoholic, abstinent for 1 year";

"      "refer BAC Hank Nason for counselling and assessment"

[17]      As ordered by Lieutenant-Colonel Tymchuk following his meeting with the applicant, the latter met with the base addiction counsellor, Hank Nason, on February 16, 1993. During this meeting, Hank Nason informed the applicant that he had in fact been registered at the rehabilitation clinic. Mr. Nason informed the applicant that the second phase of the program would be held at CFB Val Cartier, in Quebec, from April 21 to May 21, 1993.

[18]      On February 19, 1993, the applicant signed a form entitled "Application for Voluntary Release / Transfer". This document formalized, as it were, the request for release he had addressed to Lieutenant-Colonel Tymchuk on February 5, 1993.

[19]      On April 13, 1993, the applicant was informed that his application for release was approved and would take effect on May 25, 1993.

[20]      From April 21 to May 21, 1993, the applicant attended a rehabilitation clinic at CFB Val Cartier, which was the second step of the program offered by the CF. On May 25, 1993, the applicant"s release from the CF took effect with the beginning of his terminal leave.

[21]      On October 13, 1994, the applicant filed a complaint with the Office of the Commissioner of Official Languages. On October 28, 1994, the applicant met with Marcel Charlebois, the investigation and audit officer who managed the military division at the Office of the Commissioner at that time. During the meeting, the applicant informed Mr. Charlebois of the following:

(i)      that he was refused a transfer on compassionate grounds to the Quebec City area;

(ii)      that because of this refusal, he prematurely put an end to his military career because of the lack of treatment for alcoholism in French in the vicinity of CFB Gagetown;

(iii)      that the services of the addiction counsellor at CFB Gagetown were not available in French.

[22]      After an investigation, the Commissioner of Official Languages came to the following conclusions:

     [TRANSLATION]

*30.      In its final investigation report, the Commissioner concluded the following with regard to services in French for alcoholics at CFB Gagetown:

a.      There was no Francophone AA group in the vicinity of CFB Gagetown in 1993.

b.      The addiction counsellor at CFB Gagetown was not bilingual either in 1993 (when the applicant was posted there) or in 1995 (at the time of the interviews).

c.      Language is an important factor in the treatment of problems related to dependence on alcohol for people who are not totally bilingual.

d.      The Unit Drug Education Coordinators are not qualified to do group therapy for the treatment of dependence on alcohol, as this is the duty of the base addiction counsellor.

e.      Francophones at CFB Gagetown did not have access to treatment comparable to that available to the Anglophones at the Base for treatment of dependence on alcohol.

* This paragraph is taken from the affidavit of Michel Wissell, a public servant working for the Office of the Commissioner of Official Languages.

[23]      The applicant claims that he applied for release from the CF because of the infringement of his language rights. The applicant submits that he did not truly want to leave the CF. The only reason he applied for transfer and release was to deal with his alcoholism. He accordingly wished to be transferred to CFB Val Cartier for treatment there in French. The following is what the applicant stated, inter alia, in the amended affidavit which he filed in support of his application:

     [TRANSLATION]

50.-      On December 3, 1992, I therefore requested to be transferred to Quebec City and gave several reasons, but of course I did not mention my problem with alcohol, as set forth in said request filed as exhibit A-7;

51.-      My request for transfer was justified by the fact, of which I was convinced, that I wanted to follow phase 3, the one-year follow-up phase for alcoholism, at CFB Valcartier. I knew that the follow-up would be given in my language, namely French, and with support groups in my language, near my family. This request was denied;

52.-      If I gave reasons other than my problems with alcoholism in my request for transfer dated December 3, 1992, it was because I did not want to harm my chances for advancement, knowing full well that my superiors, in light of what I had previously stated in that document, knew the real reason for my request for transfer, as I had spoken to them about it several times before;

53.-      If I had been transferred to Quebec City at that time, I would have attended the clinic in French at Valcartier and I would have had a one year follow-up in French, as well as the essential support of a Francophone addiction counsellor and the follow-up of a Francophone A.A. group"all services unavailable at Gagetown in French. My only concern at that time was to get help [for my alcoholism];

55.-      In January 1993, after returning to Canadian Forces Base Gagetown after the Christmas holidays, I rapidly fell back into a depression. I was trying to stop drinking, which made me very aggressive and would cause frequent hallucinations. I was calling Quebec City almost every day in despair, but at work I did not let anything show because of my pride;

57.-      Therefore, following this setback and on the recommendation of one of my superiors, I accordingly later decided to meet with a social worker by the name of Serge R. Boudreault on the morning of February 5, 1993. Following this interview, he confided in me that he would be recommending to Colonel Timchuck [sic] that I be transferred to Quebec City, as set forth in said report filed as exhibit A-8;

58.-      After this meeting with the social worker, I realized that if I was not transferred to Quebec City quickly, where follow-up treatment for my alcoholism was available in French, I was likely to try to commit suicide again;

59.-      This despair along with a lack of support for my problem led me to request voluntary release on February 5, 1993, if I was not transferred in the summer of 1993, as set forth in said request filed as exhibit A-9. My intention at that time was in fact to continue serving with the regular force in Quebec City in order to resolve my problems with alcohol and to get my life back in order following my divorce;

70.-      At the end of the clinic (phase 2 of the treatment for alcoholism), I still hoped it was possible to be transferred to Quebec City, especially when I was asked to sign a consent for a one year follow-up, as set out in said consent signed on May 21, 1993, filed as exhibit A-12 (see also A-10.4);

79.-      The only purpose for my request for transfer of December 3, 1992, and my request for release dated February 5, 1993 and even the meetings related to these two requests was to deal with my alcoholism and to bring me closer to treatment and follow-up available in French. If I gave other reasons in these requests, it was only because I did not want to hurt my chances for advancement, but knowing full well that my superiors knew the real reason for these requests, alcoholism, as I had spoken with them about it previously on several occasions;

80.-      There is no doubt that I would still be in the regular force today if the services I needed to treat my alcoholism in French were available or if my transfer to Quebec City, as mentioned in my request of December 1992, had been accepted. Or if my request for transfer, as specified in my request of February 5, 1993, had been considered. Or if Colonel Tymchuck [sic] had kept his word to set my request for release aside to be discussed again at the end of my treatment for my drinking problem; . . . .

[24]      There are few references to the applicant"s alcoholism in the record. The first reference goes back to the fall of 1991 when the applicant"s regiment was about to be deployed to Morocco. It was at this time that the applicant"s wife left him.

[25]      In preparation for the planned deployment to Morocco, the applicant met with a social worker. The applicant characterized this meeting as follows at pages 12 and 13 of the transcript of the applicant"s examination (pages 401 and 402 of the joint record), which was held on September 5, 1997:

     [TRANSLATION]     

Q.      . . . Now, is it fair to say that this occurred because of your marital problems?

A.      No, it was standard procedure that everyone who was deployed with the United Nations had to meet with a counsellor, a padre, we call them, what is known as being put through the mill, we receive vaccinations, we receive briefings on the population. In this case, we were going to Morocco.

And one of the things we had to do was to meet with the social worker who was simply to sit and say: "There is nothing wrong, everything is fine".

She said: "Fine". She signed a form and we went on to another step.

In this case, I met her, she said: "You are married, you have two children"?

And then I said: "No, she just left".

     This led to a conversation. We finally came to the drinking problem which I identified as the major reason why my wife had left me.

[26]      Following this meeting with the social worker, the applicant applied in writing for treatment for alcoholism. The applicant wrote the following in his memo dated December 9, 1991, addressed to Lieutenant Baillargeon, his platoon commander:

     [TRANSLATION]

1.      Following discussions with the S.W., we have agreed to voluntarily take steps so that I may attend a rehabilitation clinic for alcohol. I am aware of the implications and hope that it will happen quickly.

2.      I wish to meet with the supervisors involved. Airborne.

[27]      At paragraph 15 of their memorandum of fact and law, counsel for the respondents commented on these events as follows:

     [TRANSLATION]

15.      However, at no time between December 9, 1991 and February 10, 1992, and at no time after that did the applicant attempt to discover what became of said request, Exhibit A-4; he knew that there were resource persons at CFB Petawawa for the treatment of alcoholism but did not attempt to meet them, as he believed that he did not need to inquire what help these persons could provide because "he was handling his alcohol"; . . . .

[28]      At page 28 of the transcript of his examination (page 417 of the parties" joint record), the applicant states that he had never attempted to meet with the resource persons because he "had faith in the system".

[29]      Between December 9, 1991 and February 5, 1993, there is nothing on the record to establish or indicate that the applicant had a drinking problem. On February 5, 1993, the applicant met with the social worker of CFB Gagetown, who made a report addressed to Commandant Tymchuk following his meeting with the applicant. This report, which I have reproduced above, states that the applicant had a drinking problem in the past, but had not had a drink since December 1991. According to this report, it is clear that the applicant"s problem was not a drinking problem, but a problem adjusting.

[30]      The report by the doctor who met with the applicant on February 12, 1993 is to the same effect as the report by the social worker. The report indicates that the applicant had not had any alcohol since November 1991. There is a connection, which is very clear in my view, between the reports by the social worker and the doctor and the transfer request which the applicant made on December 3, 1992. A reading of these reports and the transfer request are enough to convince me that the applicant wanted to return to Quebec City to be closer to his fiancée and his children.

[31]      It is interesting to examine the evidence of Captain Sylvain Aziz. Captain Aziz, who was assigned to CFB Gagetown from July 1, 1991 to August 31, 1994, was the mortar specialist and was in charge of the base mortar unit. From August 1992 to January 1993, the applicant served under Captain Aziz and worked for him as assistant to the mortar unit. I reproduce paragraphs 4 to 10 of Captain Aziz"s affidavit, which are very relevant:

     [TRANSLATION]

4.      I know that Sylvain Leblanc had voluntarily applied for the 1993 Forces reduction program on August 28, 1992, as set forth in the application for release filed in support of my affidavit as exhibit SA-1, because at the first stage of this administrative process, I had recommended Sylvain Leblanc for this program.

5.      This program offered several very attractive financial benefits and the group to which to applicant belonged, the infantry, had recently become eligible. I observed from our discussions that this program came at the right time for him as the applicant had already been contemplating putting an end to his military career for some time.

6.      However, to my knowledge, the applicant"s application was not accepted because the eligibility requirements were changed, as set forth in the memo dated December 7, 1992 filed in support of my affidavit as exhibit SA-2.

7.      After several months of very enthusiastic post-retirement planning, the applicant took this turn of events very badly. The applicant had told me that this program would mean that he could join his girlfriend in Quebec City, whom he visited every weekend, that he would be closer to his children living in Gatineau and that the support he owed to his former wife would be reduced, given his reduced income. He never mentioned that his reason for applying for this program was related to the lack of treatment in French for alcoholism.

8.      After he was not accepted for the Canadian Forces reduction program, the applicant advised me that he had immediately taken steps to request a transfer to Quebec City for family and personal reasons, without ever referring to his drinking problem, as set forth in the document filed in support of the applicant"s affidavit as exhibit A-7. According to the applicant, this transfer would have allowed him to fulfill his wish to be reunited with his girlfriend and to be closer to his children. However, this request was denied.

9.      It was after this second setback that he opted for a voluntary release from the Armed Forces, as set forth is the document filed in support of the applicant"s affidavit as exhibit A-9. The applicant informed me of this decision because he was still under my command. I observed from our discussions that the applicant seemed to be very comfortable and happy with this decision. He mentioned that he was looking forward to a happy post-retirement as he already had a job with a family member as well as a chance to join the reserve.

10.      At no time during these various administrative procedures did he talk about a current drinking problem, much less about difficulty receiving treatment for this problem in his official language. The only reference to alcohol during our discussions was when he advised me in the fall of 1992 that he had attended some AA meetings in the same group as another Anglophone warrant officer from our unit. With the exception of this reference, the subject of the drinking problem and its treatment never came up in our discussions or during his various administrative actions to leave the Armed Forces.

[32]      During his cross-examination, Captain Aziz testified that he had [TRANSLATION] "never had [sic ] or seen Warrant Officer Leblanc to have a drinking problem" (page 338, volume 2 of the joint record). Captain Aziz also testified that he had never had to counsel the applicant [TRANSLATION] "about his drinking problem" because, according to Captain Aziz, the applicant did not have a problem of this type (pages 339 and 340, volume 2 of the joint record). Captain Aziz even testified that he had seen the applicant several times in places where there was alcohol and that the applicant was not having any (page 343, volume 2 of the joint record).

[33]      After considering the request for transfer, Lieutenant-Colonel Tymchuk concluded that it did not meet the requirements of administrative order CFAO 20-4 concerning postings for personal reasons ("Compassionate Posting").

[34]      As I stated supra, the applicant met with Hank Nason on February 16, 1993. At page 38 of the transcript of his cross-examination of September 4, 1997 (page 313, volume 2 of the joint record), Mr. Nason clearly indicated that the applicant had informed him that he would not return to Gagetown for the third phase of the rehabilitation program because he was leaving the CF immediately after the end of the second phase of the program. The following questions and answers, as they appear in pages 312 and 313 of this transcript, are interesting:

     [TRANSLATION]

Q.      O.K.

But Mr. Nason, you recommended and you met with Warrant Officer Leblanc and you recommended phase 2 which is the medical treatment.

Was it your role to verify, while phase 2 was taken, which services would be offered in French for phase 3 for Warrant Officer Leblanc?

I. Normally when a soldier gets to phase 3 and asks for phase 3 in French, I make arrangements to give him those services.

But in the present case, Warrant Officer Leblanc did not even return to Gagetown to enter phase 3.

Q.      If I understand, Mr. Nason, you were not informed that phase 3 had been authorized for Warrant Officer Leblanc?

I. When I met with Warrant Officer Leblanc, he told me that he would not return to Gagetown for phase 3, that he was withdrawing at the end of phase 2.

[35]      It is also interesting to note a letter dated August 17, 1993 from Brigadier-General R.A. Forand to the applicant. This letter reads as follows:

     [TRANSLATION]

I recently received your letter dated July 16, which refers to your frustration and regrets concerning your release from the Canadian Forces. I therefore took a special interest in looking into the circumstances preceding your termination in order to come to a clear picture of your true situation.

According to your allegations and the information obtained concerning the end of your career, you left the CF after you could not obtain a compassionate posting to Valcartier. This particular application for transfer was in fact refused because you were informed of the length of your assignment to the Infantry School (three years) before you were transferred from Petawawa to Gagetown. You were therefore aware from that moment of the implications of this transfer and were in a position to plan for the future consequences. Your Commandant consequently thought it more appropriate to propose that you serve another year at the Infantry School, and then allow you to be transferred elsewhere. Despite these facts, you still preferred to apply for voluntary release.

Your Commandant was entitled to make such a decision because nothing guaranteed that a compassionate posting would in fact resolve your family situation once and for all. As a matter of fact, a compassionate posting must be for a limited time (generally two years) at the end of which the member must be released from the CF. In your case, there was no indication that such a transfer would resolve your family situation within two years. In fact, your family"s particular situation indicates that you will likely have to live with this problem for several years.

Concretely, there is accordingly nothing I can do to improve your present situation. It was your decision to leave the CF and you must you now accept the consequences. As for your application for a compassionate posting, your Commandant was the person who had the power to evaluate whether it was appropriate and to approve it. At that time, if you disagreed with your Commandant, you had the right to file a redress of grievance.

     In short, I regret that I cannot help you in your current distress. I recognize that your performance in the CF was first-rate and I am confident that you will be able to find a position commensurate with your aspirations and abilities in civilian life. On the other hand, you could always try to re-enter the CF through the recruiting centres or by joining the ranks of the reserve. You should be advised, however, there are few or no openings available to join the regular force in MOC 031.

[36]      Brigadier-General Forand"s letter was in reply to a letter by the applicant dated July 13, 1993. Neither the original nor a copy of the applicant"s letter was filed in evidence by the applicant. It is interesting to note that in replying to the applicant"s letter of complaint, Brigadier-General Forand never mentions alcoholism or a drinking problem. According to Brigadier-General Forand"s letter, the applicant complained in his letter dated July 16, 1993, that he had to leave the CF because he had not been able to obtain a favourable answer to his request for a compassionate posting. Brigadier-General Forand"s letter is to the same effect as the reports by the social worker and the doctor of CFB Gagetown, namely that he applicant had great difficulty adjusting to his new environment.

[37]      As I stated in the previous paragraph, in his letter of August 13, 1993, Brigadier-General Forand never mentions the applicant"s problem with alcoholism. In my view, the only possible explanation for this omission is that the applicant did not mention it in his letter of July 13, 1993. I emphasize again that the applicant did not file his complaint with the Office of the Commissioner of Official Languages until October 1994, one and a half years after his release from the CF.

[38]      The respondents" position on the applicant"s desire to receive treatment in French for his drinking problem at CFB Gagetown, appears at paragraphs 70 to 72 of their memorandum.

     [TRANSLATION]

70.      Indeed, it is clear from the evidence on the record that the applicant"s termination from the Canadian Forces is not at all related to the issue of the availability in French of services offered by the Canadian Forces for the treatment of alcoholism, nor to the applicant"s problem with alcoholism;

71.      On the contrary, the evidence as a whole indicates that this termination was driven on one hand by the applicant"s desire to leave the Armed Forces and on the other by the relative isolation the applicant felt at CFB Gagetown in light of his very recent separation, which imposed on him a heavy financial burden, and the distance between him and his new girlfriend and his family, all in the vicinity of Quebec City, and his children who live with their mother in Gatineau;

72.      In the circumstances of the instant case, as shown in the evidence, the applicant"s problem with alcoholism and the issue of language of services for the treatment of alcoholism within the Armed Forces are simply pretexts for the instant remedy . . . .

[39]      In my view, the respondents contention that there is no causal connection between the applicant"s release from the CF and the alleged infringement of his language rights is correct. In light of the evidence of the record, I do not find the applicant"s position very credible. I cannot accept the statements made by the applicant at paragraphs 51, 52, 59 and 79 of his affidavit. In my view, the applicant wished to be transferred to Quebec City at all costs to be closer to his fiancée and his family. I believe that there can be no doubt about that.

[40]      There is nothing on the record to indicate that the applicant wished to be treated in French for his alleged problem of alcoholism at CFB Gagetown. The applicant criticizes the CF for not understanding that his applications for transfer and release constituted a request for help with his problem of alcoholism. As the applicant never asked to participate in the third stage of the program offered by the CF, it is difficult to understand how the CF could have surmised that that was what he wanted. I accept without hesitation Mr. Nason"s testimony that the applicant informed him that he would not return to Gagetown for phase 3 of the rehabilitation program as he was leaving the CF at the end of phase 2. I also accept without hesitation Captain Aziz"s testimony, which in my view, is consistent with the evidence as a whole. In my opinion, the applicant would have been willing to follow phase 3 of the rehabilitation program had he been able to attend at CFB Val Cartier. What he wanted was to return to Quebec City, not to get help for his drinking problem. As I stated above, I am in complete agreement with the remarks by the respondents in their memorandum that [TRANSLATION] "the respondent"s problem with alcoholism and the issue of language of services for the treatment of alcoholism within the Armed Forces are simply pretexts for the instant remedy".

[41]      In his request for release filed on February 5, 1993, the applicant clearly states that he wished to be released from the CF because his request to be transferred to Quebec City during the summer of 1993 was denied. Nowhere does the applicant indicate that he wished to be released because he could not obtain in French the treatment offered by the CF for dependence on alcohol, especially the third step of the program.

[42]      It must also be remembered that the applicant applied for early retirement in September 1992, and stated in support of his application that he did not wish to extend his career beyond 20 years and that he intended to return to school. He made similar remarks in his request for transfer in December 1992.

[43]      At paragraph 79 of his affidavit, the applicant states that he did not mention his problem with alcoholism in his applications for transfer and release because he did not want to hurt his chances for advancement in the CF. I do not find this statement by the applicant credible. In my view, he did not mention his problem with alcoholism because he wanted to be transferred to Quebec City, not to be treated for his problem with alcoholism.

[44]      In my opinion, the memorandum from Commandant Tymchuk reproduced at paragraph 15 of my reasons states the reality of the situation, which is that the applicant either wanted to be transferred to Quebec City or to be released from the CF. In my view, had the applicant told Commandant Tymchuk that he did not want to leave the CF but wanted help for his problem with alcoholism, the memorandum would have mentioned it. The evidence clearly indicates that the applicant applied for release from the CF because Lieutenant-Colonel Tymchuk refused to transfer him to Val Cartier. He never mentioned or indicated to Lieutenant-Colonel Tymchuk that he wished to be treated for a problem with alcoholism. He filed his request for release on February 5, 1993, and it was accepted by the CF two months later. Had he wanted to, the applicant could have notified Lieutenant-Colonel Tymchuk that he did not wish to be released but to receive treatment for his problem with alcoholism.

[45]      In light of my conclusion, I need not consider the other question raised in the applicant"s application, namely whether phase 3 of the program was available in French at CFB Gagetown. For these reasons, the applicant"s application for a remedy will be dismissed with costs to the respondents.

Ottawa, Ontario      MARC NADON

December 23, 1998      JUDGE

Certified true translation

M. Iveson

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:      T-2367-96

STYLE OF CAUSE:      Sylvain Leblanc v. Her Majesty the Queen et al.

PLACE OF HEARING:      QUÉBEC, QUEBEC

DATE OF HEARING:      September 24, 1998

REASONS FOR ORDER OF NADON J.

DATED:      December 23, 1998

APPEARANCES:

Robert Parent              FOR THE APPLICANT

René Leblanc              FOR THE RESPONDENTS

Elizabeth Grace              FOR THE THIRD PARTY

SOLICITORS OF RECORD

Lavoie Parent & Girard              FOR THE APPLICANT

Québec, Quebec

Morris Rosenberg              FOR THE RESPONDENTS

Deputy Attorney General of Canada

Office of the Commissioner of Official Languages      FOR THE THIRD PARTY

Elizabeth Grace