Date: 20060421
Docket: T-690-05
Citation: 2006 FC 505
BETWEEN:
CHARLES FREDERICK ARMSTRONG
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.
[1] The applicant, Lieutenant Colonel Armstrong, is a Primary Reserve Officer in the Canadian Forces Reserve Service. He seeks judicial review of a decision of the Director General Canadian Forces Grievance Authority (the Grievance Authority) wherein the Grievance Authority determined that the classification of Lieutenant Colonel Armstrong's service is Class "B" rather than Class "C".
I. Background
[2] Lieutenant Colonel Armstrong (Armstrong) joined the Regular Force of the Canadian Forces (CF) in 1974, through the military college program. He became a Commissioned Officer in 1979, as a military engineer, and served in the Regular Force from 1979 until 1991, at which time he voluntarily transferred to the Reserve Force and accepted a full-time employment position as a non-military employee in the Federal Public Service. As a member of the Reserve Force, absent his consent, he is not subject to posting throughout Canada or deployment to operations.
[3] From 1991 until 2000, Armstrong maintained full-time employment with the Department of Communications and Defence Construction Canada. In March of 2000, he was offered a Class "C" Reserve contract with the Deputy Chief of Defence Staff Group. He maintained that position until June 2002, when a Regular Force member was transferred into the position.
[4] Armstrong was offered a Class "B" Reserve position with the Directorate of Official Languages (DOL), to replace a Regular Force member on maternity leave, from July 22, 2002, until March 31, 2003. Before starting, he was required to sign a statement acknowledging the terms and conditions of his employment (certified tribunal record at pp. 82, 83 of the respondent's record). This employment was subsequently extended to September 30, 2003. The initial call out for service was renewed for three subsequent periods (certified tribunal record at pp. 29-42 of the respondent's record). Each renewal was for a period of less than 12 months.
[5] On October 23, 2002, Armstrong filed an application for redress of grievance, in accordance with the CF grievance procedure, seeking to have the classification of his service, which commenced on July 22, 2002, changed to Class "C". On April 30, 2003, the Director General, Military Human Resources Policy and Planning (the Initial Authority), denied the first level grievance. On May 26, 2003, Armstrong applied to the final authority in the grievance process, the Chief of Defence Staff (CDS). That application was redirected to the Grievance Authority, delegated, to determine the grievance. By decision dated February 28, 2005 and received by Armstrong on March 21, 2005, the grievance was denied.
[6] Armstrong holds the position of "Project Manager" (formerly entitled "Senior Policy Officer") with the DOL. This is an administrative military mission that involves the development and evaluation of policies. Armstrong has been in the position since July 22, 2002 and is scheduled to continue until at least July 2006. The Class "B" (rather than Class "C") classification negatively impacts his salary, benefits, and pension. Armstrong estimates a reduction of approximately 15 %, across the board, and alleges that, absent a classification of Class "C", his remuneration will continue to be negatively impacted for the next 11 years (the number of years remaining until he attains the mandatory retirement age of 60).
[7] The three categories for Reserve Service, Class "A", Class "B" and Class "C", are defined in Chapter 9 of the Queen's Regulations and Orders (QRO), enacted pursuant to the provisions of the National Defence Act, R.S.C. 1985, c. N-5, as amended (NDA). Classification, under these headings, will impact the members' entitlement to remuneration and benefits.
[8] In August 2001, the CF announced a new Reserve Force Employment Policy. The stated purpose of the change was to recognize the contemporary nature of Reserve Force training and employment. It was intended that, under the new structure, the majority of reservists would serve in a form of limited liability service of a full or part-time nature. The policy was promulgated as Canadian Forces General Message (CANFORGEN) 095/01 and was released on August 27, 2001. Apparently, it was a source of confusion, which was not alleviated by CANFORGEN 104/01 dated September 17, 2001. These policies were revoked by CANFORGEN 023/02, introduced on March 23, 2003, which approved a "new and modified" Reserve Employment Framework, scheduled to take effect on April 1, 2003. Transitional Class "C" policies, outlined in CANFORGEN 023/02, were to take effect immediately.
[9] In his grievance submissions, Armstrong asserted that he meets the definition for Class "C" service because: he is serving in a CF operation; he is serving in a Regular Force establishment; he is not serving in a temporary position; and his duties do not pertain to training. Alternatively, he submitted that CANFORGEN 023/02 is in conflict with the QRO articles 9.07 and 9.08. After receiving a negative determination from both the Initial Authority and the Grievance Authority, he filed an application for judicial review in this court on April 2, 2005. By direction of the court dated September 20, 2005, the application was amended to include an allegation that the Grievance Authority had failed to recognize the "reasonable apprehension of bias caused by the [Grievance Authority's] own involvement in the promulgation of the impugned policy, as well as the [Grievance Authority's] role as the final decision-maker in the grievance process".
II. The Decision
[10] The Grievance Authority summarizes Armstrong's arguments, reviews the relevant facts, the applicable law and policy, and provides an analysis for the denial of the grievance. The Grievance Authority describes Armstrong's position (in the factual portion of the decision) as follows:
You were employed as Senior Policy Officer on CL B service in DOL at National Defence Headquarters (NDHQ) in Ottawa, Ontario, on July 22, 2002. This position was subsequently renamed "DOL Project Officer". This position is a Reserve Force Temporary Augmentation Position loaned from the NDHQ Primary Reserve list (PRL) for a period of three years. The term of your engagement was for 253 days to cover the period from 22 July 2002 to 31 March 2003. This was subsequently amended to 2 June 2003. Your CL B service was extended for three more successive periods.
[11] Regarding the nature of Armstrong's employment, the Grievance Authority stated:
I agree that you are employed on full-time service. However, you are not in a Regular Force position. You are in a temporary CL B position from the PRL and your employment was not approved as CL C by the CDS pursuant to paragraph (1)(a) or (b) of QR & O Article 9.08. You are not supernumerary to the Regular Force establishment and you are not deployed on operations. Therefore, you do not meet the requirements of CL C service as specified in QR & O Article 9.08.
I also note that on 9 July 2002 your parent unit, Land Force Doctrine and Training System, concurred with your employment in DOL as Senior Policy Officer. This service was authorized as CL B service and you accepted this employment offer for a specific period of approximately 10 ½ months (22 July 2002 to 2 June 2003). This is reflected on your CL B Reserve Force Route Letter and Attendance Report (CF 899). Therefore, I conclude that your CL B employment in DOL was properly authorized by a delegated authority pursuant to QR & O Article 9.07(1)(c).
CANFORGEN 023/02 provides that employment in non-operational positions shall normally be authorized as CL B and exceptions may only be granted by Assistant Deputy Minister (Human Resources-Military (ADM (HR-Mil)) in extraordinary circumstances. There is no evidence in your file that would lead me to conclude that extraordinary circumstances existed that would justify your employment as CL C, nor is there any indication that an application was made to ADM (HR-Mil) to authorize it.
There is no evidence presented in your file that the CDS, or his delegated authority, has authorized you CL C employment in a Regular Force establishment position as is required by QR & O Article 9.08, or that he has authorized your employment on operations. I, therefore, conclude that you were hired on full-time service, for duties of a temporary nature, when it was not practical to employ a member of the Regular Force. In my assessment, this was an appropriate call-out on Reserve CL B service.
[12] The Grievance Authority rejected Armstrong's argument that the total length of the employment makes it permanent rather than temporary. The Oxford Concise English Dictionary defines "temporary" as "lasting only for a limited period". Each of Armstrong's successive periods of employment has been for 12 months or less. As a member of the CF, the NDA provides for Armstrong to be called out on a series of call outs of fixed duration. Thus, Armstrong's employment is not full-time.
[13] In response to Armstrong's argument that CANFORGEN 023/02 is contrary to the QRO Chapter 9 and that the QRO articles 9.07 and 9.08 are Governor in Council regulations and should prevail over CDS issued orders, the Grievance Authority agreed in part. While it was accepted that Governor in Council regulations prevail over CDS issued orders, Armstrong's interpretation of articles 9.07 and 9.08 was considered incomplete because it omitted the conditional approval required by the CDS or his delegated authority. This provides substantial management discretion in determining whether to use Class "B" or Class "C" service. CANFORGEN 023/02 stipulates that, in extraordinary circumstances, exceptions to this limitation may be granted by ADM (HR-Mil). Armstrong's employment in DOL throughout the total period was essentially the same. It did not and would not meet the criteria of "extraordinary circumstances".
[14] The Grievance Authority was not prepared to reclassify Armstrong as Class "C" and concluded that the current classification was consistent with the applicable law and policy at the time. Further, Armstrong had agreed to the terms of his employment.
III. Relevant Statutory Provisions
[15] The relevant statutory provisions will be referred to, as need be, throughout these reasons. For ease of reference, subsections 33(2) and 33 (4) of the NDA as well as articles 9.06, 9.07 and 9.08 of the QRO are reproduced here.
| National Defence Act,
R.S.C. 1985, c. N-5
33(2) The reserve force, all units and other elements thereof and all officers and non-commissioned members thereof
a) may be ordered to train for such periods as are prescribed in regulations made by the Governor in Council; and (b) may be called out on service to perform any lawful duty other than training at such times and in such manner as by regulations or otherwise are prescribed by the Governor in Council.
[...]
33(4) In this section, "duty" means any duty that is military in nature and includes any duty involving public service authorized under section 273.6.
Queen's Regulations and Orders
9.06 - CLASS "A" RESERVE SERVICE
(1) A member of the Reserve Force is on Class "A" Reserve Service when the member is performing training or duty in circumstances other than those prescribed under articles 9.07 (Class "B" Reserve Service) and 9.08 (Class "C" Reserve Service.
(2) Class "A" Reserve Service includes proceeding to and returning from the place where the training or duty is performed, but not when that training or duty, including attendance at local parades, local demonstrations or local exercises, is performed at local headquarters.
9.07 - CLASS "B" RESERVE SERVICE
(1) A member of the Reserve Force is on Class "B" Reserve Service when the member is on full-time service and:
(a) serves in a temporary position on the instructional or administrative staff of a school or other training establishment conducting training for the Reserve Force, the Royal Canadian Sea Cadets, the Royal Canadian Army Cadets or the Royal Canadian Air Cadets;
(b) proceeds on such training attachment or such training course of such duration as may be prescribed by the Chief of the Defence Staff; or
(c) is on duties of a temporary nature approved by the Chief of the Defence Staff, or by an authority designated by him, when it is not practical to employ members of the Regular Force on those duties.
(2) Class "B" Reserve Service includes proceeding to and returning from the place of duty.
9.075 - DEEMED FULL-TIME SERVICE
A member of the Reserve Force who is serving on an operation of a type approved by or on behalf of the Chief of the Defence Staff under subparagraph 9.08(1)(b) (Class "C" Reserve Service) is deemed to be on full-time service.
9.08 - CLASS "C" RESERVE SERVICE
(1) A member of the Reserve Force is on Class "C" Reserve Service when the member is on full-time service and is serving
(a) with approval by or on behalf of the Chief of the Defence Staff in a Regular Force establishment position or is supernumerary to Regular Force establishment; or
(b) on either an operation or an operation of a type approved by or on behalf of the Chief of the Defence Staff.
(1.1) For the purpose of subparagraph (1)(b), "operation" includes training and other duties necessary for the operation, and leave related to the operation.
(2) Class "C" Reserve Service includes proceeding to and returning from the place of duty.
|
Loi sur la défense nationale,
L.R.C. 1985, ch. N-5
33(2) La force de réserve, ses unités et autres éléments, ainsi que tous ses officiers et militaires du rang, peuvent être :
a) astreints à l'instruction pour les périodes fixées par règlement du gouverneur en conseil; b) soumis à l'obligation de service légitime autre que l'instruction, aux époques et selon les modalités fixées par le gouverneur en conseil par règlement ou toute autre voie.
[...]
33(4) Pour l'application du présent article, « service » s'entend, outre des tâches de nature militaire, de toute tâche de service public autorisée sous le régime de l'article 273.6.
Ordonnances et Règlements royaux
9.06 - SERVICE DE RÉSERVE DE CLASSE « A »
(1) Un militaire de la force de réserve sert en service de réserve de classe « A » lorsqu'il accomplit l'instruction ou exécute des tâches dans des circonstances autres que celles qui sont prescrites au titre des articles 9.07 (Service de réserve de classe « B » ) et 9.08 (Service de réserve de classe « C » ).
(2) Le service de réserve de classe « A » comprend le temps consacré pour se rendre au lieu où l'instruction ou le service est accompli et en revenir, sauf dans les cas où l'instruction ou le service en question, y compris toute séance locale de rassemblement, de démonstration ou d'exercice, est accompli dans un quartier général local.
9.07 - SERVICE DE RÉSERVE DE CLASSE « B »
(1) Un militaire de la force de réserve sert en service de réserve de classe « B » lorsqu'il accomplit du service à plein temps et que selon le cas, il :
a) sert à titre temporaire en qualité de membre du personnel des instructeurs ou du personnel administratif d'une école ou de tout autre établissement de formation où se donne de l'instruction pour la force de réserve, les Cadets royaux de la Marine canadienne, les Cadets royaux de l'Armée canadienne ou les Cadets royaux de l'Aviation canadienne;
b) est envoyé, soit en affectation pour fins d'instruction, soit à un cours d'instruction pour une période que peut prescrire le chef d'état-major de la défense;
c) est affecté à des tâches de nature temporaire sur l'autorisation du chef d'état-major de la défense ou d'une autorité désignée par lui, lorsqu'il n'est pas pratique d'affecter des militaires de la force régulière à ces tâches.
(2) Le service de réserve de classe « B » comprend le temps consacré pour se rendre au lieu de service et en revenir.
9.075 - PRÉSOMPTION RELATIVE AU SERVICE À PLEIN TEMPS
Un militaire de la force de réserve servant dans le cadre d'une opération approuvée par le chef d'état-major de la défense ou d'une opération dont le genre est approuvé par celui-ci aux termes du sous-alinéa 9.08(1)b) (Service de réserve de classe « C » ) est réputé être en service à plein temps.
9.08 - SERVICE DE RÉSERVE DE CLASSE « C »
(1) Un militaire de la force de réserve est en service de réserve de classe « C » , lorsqu'il est en service à plein temps et que, selon le cas :
a) avec l'approbation du chef d'état-major de la défense, il occupe un poste prévu à l'effectif de la force régulière ou est surnuméraire à l'effectif de cette force;
b) il sert dans le cadre d'une opération approuvée par le chef d'état-major de la défense ou d'une opération dont le genre est approuvé par celui-ci.
(1.1) Pour l'application du sous-alinéa (1)b), sont assimilés à une opération l'instruction en vue de l'opération, toute autre tâche nécessaire dans le cadre de l'opération ainsi que tout congé relatif à l'opération.
(2) Le service de réserve de classe « C » comprend le temps consacré pour se rendre au lieu de service et en revenir.
|
IV. Preliminary Matters
[16] There are preliminary issues to be determined. They arise out of the respondent's requests to strike: (a) the document at tab 5 of the applicant's record; and (b) paragraphs 17 and 18 (including exhibit "F") of Armstrong's affidavit sworn June 3, 2005. Before addressing the merits of the respondent's requests, for the record, I do not find, in view of this court's determination in Armstrong v. Attorney General of Canada 2005 FC 1013, that the timeliness of the respondent's requests can be faulted. Put another way, it was not inappropriate for the respondent to address these matters at the outset of the hearing of the application. Notice of the respondent's objections was provided to the applicant in the respondent's record.
A. The Document at tab 5 of the applicant's record
[17] The document at tab 5 is a copy of a final level grievance decision by the CDS dated October 6, 2004, regarding another officer's grievance with respect to a Class"B" rather than a Class "C" classification.
[18] The only reference to this document (aside from its inclusion at tab 5) is during the cross-examination of the deponent of the affidavit tendered by the respondent in this proceeding. At the cross-examination, Armstrong's counsel had the document marked as an exhibit over the objection of the respondent's counsel. The basis of the objection was that the document was not in evidence (not having been previously submitted through an affidavit or otherwise). The witness did not answer any questions relating to the document. It is not referred to in either Armstrong's supporting affidavit or in his written submissions.
[19] Armstrong contends (in oral argument) that the document supports his submission of reasonable apprehension of bias and can therefore be admitted as evidence notwithstanding that it was not before the decision-maker. New evidence, he states, is admissible where it relates to issues of procedural fairness and jurisdiction. Additionally, it is said that Armstrong did not become aware of the existence of the document until after his appeal to the final authority had been submitted. Indeed, the document post-dates those submissions. In Armstrong's view, because the document reveals that the Grievance Authority in this grievance, in a separate grievance pertaining to the same policy, "acknowledged bias" and recused himself from the process, it establishes a reasonable apprehension of bias on the part of the Grievance Authority. Moreover, Armstrong could not reasonably have discovered the decision prior to his judicial review proceedings.
[20] For the reasons that follow, the document will be struck from the applicant's record. I reiterate and emphasize that Armstrong's position is advanced solely through oral argument. The foundation for the argument is missing because there is no evidence to support it, other than the document itself.
[21] Armstrong is correct that, where issues of procedural fairness and jurisdiction arise, the general rule, that applications for judicial review are concluded on the basis of the material before the administrative decision-maker, is relaxed. However, a document, such as the one here, must be properly introduced. On judicial review, it is to be exhibited to an affidavit. It cannot appear out of nowhere. The impugned document is not one that can be characterized as being subject to the doctrine of "judicial notice".
[22] The situation that exists here is analogous to that which existed in AstraZeneca Canada Inc. v. Apotex Inc., [2004] 2 F.C.R. 364 (C.A.). In that case, AstraZeneca included pages from The Merck Index: An Encyclopedia of Chemicals, Drugs and Biologicals, 13th ed. and The Handbook of Pharmaceutical Excipients, 3rd ed. in its book of authorities. It then cited the references in support of a statement in its memorandum of law. In concluding that the references should be struck, the Court of Appeal noted that the real value of the references was as evidence to prove a key fact relating to a controversial issue between the parties. If the document was not struck, the respondent would be left unable to respond to or cross-examine upon the evidence. Such a circumstance was viewed as obviously prejudicial to Apotex.
[23] The same reasoning is applicable here. The controversial issue is that of a reasonable apprehension of bias. Even if I were to accept all of Armstrong's arguments in relation to "new evidence", they do nothing to alleviate the prejudice to the respondent. It was open to Armstrong to seek leave to file a supplementary affidavit. Indeed, the direction of the court dated September 20, 2005, explicitly preserved Armstrong's right to file a supplementary affidavit within 10 days of receipt of the certified tribunal record. If the document was not known to Armstrong at that time, he could have sought an extension of time. The general test for supplementary material is whether the additional material will serve the interests of justice, will assist the court and will not seriously prejudice the other side: Mazhero v. Canada (Industrial Relations Board) (2002), 292 N.R. 187 (F.C.A.); Atlantic Engraving Ltd. v. Lapointe Rosenstein 2002 FCA 503. Further, I am not at all persuaded that the document establishes, as contended, the existence of a reasonable apprehension of bias on the part of the Grievance Authority.
[24] In the result, the document is struck from the applicant's record.
B. Paragraphs 17 and 18 (including exhibit "F") of Armstrong's Affidavit
[25] Paragraphs 17 and 18 refer, primarily, to article 4.02 of the QRO. That article requires an officer to "promote the welfare, efficiency and good discipline of all subordinates". The debate concerns Armstrong's statement that article 4.02 constitutes a fiduciary duty or fiduciary obligation. The respondent takes exception to exhibit "F" and to the statements related to fiduciary duty because they were not before the Grievance Authority.
[26] The respondent is correct that the notion of "fiduciary duty" was not raised in Armstrong's grievance submissions. Hence, it is not open to Armstrong to advance an allegation of breach of fiduciary duty, for the first time, on judicial review. Judicial review is designed to determine if the decision-maker committed any reviewable error in the way it dealt with the case before it, not some other case it might have heard: Nametco Holdings Ltd. v. M.N.R. 2002 FCA 149. See also: OntarioAssn. of Architects v. Assn. of Architectural Technologists of Ontario, [2003] 1 F.C. 331 (C.A.).
[27] That said, the respondent's objection can be addressed by striking the phrases "fiduciary duty" and "fiduciary obligation" from paragraphs 17 and 18. There is no need to strike the paragraphs in their entirety.
[28] I also note, in relation to the "breach of fiduciary duty", that the allegation is exactly that, an allegation, without more. In short, the allegation is comprised of a statement that article 4.02 creates a fiduciary obligation. The argument begins and ends there. No attempt is made to demonstrate the existence of the common features that provide a guide to whether the imposition of a fiduciary relationship would be appropriate, as set out in Frame v. Smith, [1987] 2 S.C.R. 99 and affirmed in Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574. For this reason and for the reason that no allegation of breach of fiduciary duty was advanced during the grievance process, it will not be considered in this proceeding.
[29] Exhibit "F" is a reproduction of Chapter 4 of the QRO. The QRO constitute the regulations enacted pursuant to the NDA. The Grievance Authority must be taken to know of and be conversant with the QRO. (See: QRO article 4.02(a)). I see no reason to strike the exhibit. The respondent acknowledged as much during the hearing. I turn now to the merits of the application.
V. Issues
[30] The issues identified by the parties are whether there was:
(a) improper delegation by the Chief of Defence Staff;
(b) error by the Grievance Authority in the interpretation of articles 9.07 and 9.08 of the QRO and in the failure to conclude that CANFORGEN 023/02 does not conflict with article 1.23 of QRO;
(c) error by the Grievance Authority in failing to recognize the existence of a reasonable apprehension of bias.
VI. The Standard of Review
[31] The applicable standard of review turns on the nature of the particular issue. If Armstrong is correct that the CDS could not delegate decision-making power to the Grievance Authority, any decision of the Grievance Authority would be ultra vires. Such a question will always be reviewed on a standard of correctness: United Taxi Drivers' Fellowship of Southern Alberta v. Calgary(City), [2004] 1 S.C.R. 485 at para. 5.
[32] In relation to the allegation of reasonable apprehension of bias, if established, the existence of a reasonable apprehension of bias results in a breach of natural justice or procedural fairness. This is reviewed as a question of law and no deference is due. There is no need to conduct a pragmatic and functional analysis in relation to questions of procedural fairness: Sketchley v. Canada(Attorney General) (2005), 344 N.R. 257 (F.C.A.) at paras. 52-55.
[33] Regarding the Grievance Authority's determination of the appropriate classification of Armstrong's position, the pragmatic and functional analysis requires examination of the four factors applicable to the analysis. There is, here, a privative clause that insulates the decision from review, except for judicial review under the Federal Courts Act, R.S.C. 1985, c. F-7, as am. This factor militates in favour of limited deference.
[34] The purpose of the Act is to provide for the management, direction and administration of the CF. The purpose of the specific provisions, in relation to this matter, is the efficient resolution of grievances or disputes. The issue in this case is not polycentric. Rather, it is of a private or personal nature. Some deference is appropriate in view of the fact that the final decision lies with the CDS, or an officer delegated by him.
[35] The expertise of the decision-maker militates in favour of deference. The CDS, the most senior officer in the CF, is charged with control and administration of the CF. The NDA mandates that all orders and instructions to the CF, to carry out the directions of the Governor in Council or the Minister, are to be issued through the CDS. It is to be expected that the CDS, or his delegate, will be conversant with all facets of the military context, unlike the court. This factor indicates a high level of deference.
[36] The nature of the problem is the classification of service. In approaching the issue, findings of fact are required. Additionally, the facts must be applied to the legislation and the policy. The proper, orderly and consistent administration of the legislation and the policy is a necessary element to the orderly and efficient functioning of the CF. Intimate knowledge of and sensitivity to the needs of the military institution are required. This factor militates in favour of deference.
[37] Balancing the factors, I conclude that for findings of fact, the applicable standard of review is that set out in the Federal Courts Act, that is, they are reviewable only if they are erroneous, made in a perverse or capricious manner or without regard to the evidence. This is equivalent to patent unreasonableness. In all other respects, the decision of the CDS (in this case the Grievance Authority) is subject to review on a standard of reasonableness. See: McManus v. Canada(Attorney General) 2005 FC 1281 at paras. 14-20.
VII. Delegation
[38] Armstrong claims that because the CDS does not have authority to delegate the decision-making power to anyone holding a rank below that of Major-General, the Grievance Authority was without jurisdiction to determine the grievance. In this respect, he refers to article 1.13(2) of the QRO and asserts that the Grievance Authority, a Colonel, could not act, in lieu of the CDS, as the final grievance authority.
[39] At first blush, it appears, as Armstrong states, that article 1.13(2) restricts the delegation capacity of the CDS. Actually, the article goes further and enumerates the specific positions (held by individuals) to which the authority of the CDS can be delegated. However, as discussed below, article 1.13(2) does not apply to the grievance process.
[40] The grievance process is provided for in the NDA, specifically at section 29. By virtue of section 29.11, the CDS is the final authority in the grievance process. However, section 29.14 explicitly authorizes the CDS to delegate the powers, duties or functions, as final authority in the grievance process, to any officer. An exception exists when the matter is one that must be referred to the Grievance Board, but that is not the situation here. The section also restricts further delegation by the delegate. There is no ambiguity in the provision authorizing the delegation to any officer.
[41] It is a basic tenet of statutory interpretation that subordinate legislation cannot conflict with its enabling legislation. If it does, the statute prevails over the regulation: Friends of the Oldman RiverSociety v. Canada(Minister of Transport), [1992] 1 S.C.R. 3. Moreover, the specific provision prevails over the general one: Ruth Sullivan, Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002) at p. 273.
[42] Section 29.14 of the NDA permits the CDS to delegate, to any officer, the powers, duties or functions of the CDS, as final authority in the grievance process, except in specified circumstances that are not present here. Armstrong's "delegation" argument must fail.
VIII. Error in Interpretation and Failure to Find Conflict
[43] Armstrong asserts that he should be classified as Class "C" because his duties do not pertain to training and his position is not temporary. He claims that his position is a Regular Force establishment position.
[44] More specifically, he states that the Grievance Authority erred because he has held his current position since July 22, 2002, and will continue in the position until at least July 2006. Additionally, it is not training-related. Therefore, according to Armstrong, it is not temporary in nature. He has been performing the same duties for more than three years. "Temporary" is defined, by Canadian Forces Administration Order (CFAO) 20-5 as a period of six months or less. The Grievance Authority ignored this definition.
[45] Alternatively, Armstrong contends that article 1.04 of the QRO mandates that words and phrases should be construed according to the common approved meaning in the Concise Oxford Dictionary except where they are technical, have acquired a special meaning within the CF, or are defined in the QRO, the Interpretation Act, R.S. 1985, c. I-21, or the NDA. Article 9.07(1)(c) refers to "duties" of a temporary nature rather than a "position" of a temporary nature. Section 33 of the NDA defines "duty" as any duty that is military in nature.
[46] In Armstrong's view, while the establishment is Regular Force, there are, inside the establishment, both Regular and Reserve Force positions. It is the "establishment" rather than the "position" that dictates Class "C" service. He claims that this distinction is evident by reference to section 17 of the NDA. The uncontradicted evidence is that he is not on duties of a "temporary nature", but is, and has been, on full-time service in a Regular Force establishment for three years.
[47] Last, on this issue, Armstrong claims that the Grievance Authority failed to recognize the conflict between CANFORGEN 023/02 and the QRO. He contends that the policy made amendments to the Reserve Employment Framework that directly conflict with articles 9.07 and 9.08. Article 1.23 of the QRO prohibits the issuance of a policy that is inconsistent with the applicable QRO.
[48] It is common ground that article 9.06 of the QRO, Class "A" Reserve Service, is not an issue and reference need not be had to it. For convenience, articles 9.07 and 9.08 are, again, reproduced here.
| Queen's Regulations and Orders
9.07 - CLASS "B" RESERVE SERVICE
(1) A member of the Reserve Force is on Class "B" Reserve Service when the member is on full-time service and:
(a) serves in a temporary position on the instructional or administrative staff of a school or other training establishment conducting training for the Reserve Force, the Royal Canadian Sea Cadets, the Royal Canadian Army Cadets or the Royal Canadian Air Cadets;
(b) proceeds on such training attachment or such training course of such duration as may be prescribed by the Chief of the Defence Staff; or
(c) is on duties of a temporary nature approved by the Chief of the Defence Staff, or by an authority designated by him, when it is not practical to employ members of the Regular Force on those duties.
(2) Class "B" Reserve Service includes proceeding to and returning from the place of duty.
9.075 - DEEMED FULL-TIME SERVICE
A member of the Reserve Force who is serving on an operation of a type approved by or on behalf of the Chief of the Defence Staff under subparagraph 9.08(1)(b) (Class "C" Reserve Service) is deemed to be on full-time service.
9.08 - CLASS "C" RESERVE SERVICE
(1) A member of the Reserve Force is on Class "C" Reserve Service when the member is on full-time service and is serving
(a) with approval by or on behalf of the Chief of the Defence Staff in a Regular Force establishment position or is supernumerary to Regular Force establishment; or
(b) on either an operation or an operation of a type approved by or on behalf of the Chief of the Defence Staff.
(1.1) For the purpose of subparagraph (1)(b), "operation" includes training and other duties necessary for the operation, and leave related to the operation. (17 September 2003)
(2) Class "C" Reserve Service includes proceeding to and returning from the place of duty.
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Ordonnances et Règlements royaux,
9.07 - SERVICE DE RÉSERVE DE CLASSE « B »
(1) Un militaire de la force de réserve sert en service de réserve de classe « B » lorsqu'il accomplit du service à plein temps et que selon le cas, il :
a) sert à titre temporaire en qualité de membre du personnel des instructeurs ou du personnel administratif d'une école ou de tout autre établissement de formation où se donne de l'instruction pour la force de réserve, les Cadets royaux de la Marine canadienne, les Cadets royaux de l'Armée canadienne ou les Cadets royaux de l'Aviation canadienne;
b) est envoyé, soit en affectation pour fins d'instruction, soit à un cours d'instruction pour une période que peut prescrire le chef d'état-major de la défense;
c) est affecté à des tâches de nature temporaire sur l'autorisation du chef d'état-major de la défense ou d'une autorité désignée par lui, lorsqu'il n'est pas pratique d'affecter des militaires de la force régulière à ces tâches.
(2) Le service de réserve de classe « B » comprend le temps consacré pour se rendre au lieu de service et en revenir.
9.075 - PRÉSOMPTION RELATIVE AU SERVICE À PLEIN TEMPS
Un militaire de la force de réserve servant dans le cadre d'une opération approuvée par le chef d'état-major de la défense ou d'une opération dont le genre est approuvé par celui-ci aux termes du sous-alinéa 9.08(1)b) (Service de réserve de classe « C » ) est réputé être en service à plein temps.
9.08 - SERVICE DE RÉSERVE DE CLASSE « C »
(1) Un militaire de la force de réserve est en service de réserve de classe « C » , lorsqu'il est en service à plein temps et que, selon le cas :
a) avec l'approbation du chef d'état-major de la défense, il occupe un poste prévu à l'effectif de la force régulière ou est surnuméraire à l'effectif de cette force;
b) il sert dans le cadre d'une opération approuvée par le chef d'état-major de la défense ou d'une opération dont le genre est approuvé par celui-ci.
(1.1) Pour l'application du sous-alinéa (1)b), sont assimilés à une opération l'instruction en vue de l'opération, toute autre tâche nécessaire dans le cadre de l'opération ainsi que tout congé relatif à l'opération. (17 septembre 2003)
(2) Le service de réserve de classe « C » comprend le temps consacré pour se rendre au lieu de service et en revenir.
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[49] CANFORGEN 023/02, in its entirety, is attached to these reasons as Schedule "A". CANFORGEN 023/02 represents a change from previous policy regarding the Reserve Service System.
[50] Subsections 12(1) and 12(2) of the NDA permit the Governor in Council and the Minister to enact regulations for the organization, training, discipline, efficiency, administration and good government of the CF. The QRO constitute the regulations enacted under the authority of section 12 of the NDA, the enabling or parent legislation. The CDS is appointed by the Governor in Council and, subject to the regulations and under the direction of the Minister, the CDS is charged with the control and administration of the CF.
[51] The categories for Reserve Service are defined by the QRO. CANFORGEN 023/02 constitutes the policy or mechanism by which the categories, as defined by the QRO, are to be administered. It is noteworthy that, except for alleging that CANFORGEN 023/02 conflicts with articles 9.07 and 9.08, Armstrong does not purport to attack or question the merits of the policy itself. Rather, his quarrel is with the Grievance Authority's interpretation of it.
[52] It is also significant that articles 9.07 and 9.08 require CDS (or a designate) approval for both Class "B" and Class "C" classifications. Thus, there is discretion involved.
[53] As stated at the outset of these reasons, in August of 2001, the CF announced a new Reserve Force Employment Policy that was intended to change the then-existing system for Reserve Service. The stated purpose of the change was to recognize the contemporary nature of Reserve Force training and employment. It was intended that, under the new structure, the majority of reservists would serve in a form of limited liability service of full or part-time nature.
(certified tribunal record at pp. 155-157 of the respondent's record).
[54] This announcement was further amended in 2003. CANFORGEN 023/02, introduced on March 23, 2003, further defined the limits on Class "C" service by outlining the types of operations, referenced in article 9.08 of the QRO, that would henceforth qualify as Class "C" service.
[55] Paragraph 4 of CANFORGEN 023/02 dictates that the new Reserve Employment Framework Policy does not take effect before April 1, 2003. Paragraph 5 provides for transitional Class "C" policies to take effect immediately. It is useful to set out paragraph 5 in its entirety.
5. The following transitional Class C Policies are effective immediately
A. Reservists employed on operations will be placed on Class C Service IAW QRO 9.08. This includes DCDS deployed operations (pre and post development training), MCDC [Maritime Coastal Defence Ventures] crews, and local contingency operations including increased security measures.
B. Existing agreements for reservists currently serving on Class C in non-operational positions shall be honoured to their end date.
C. Extensions to existing agreements for employment in currently occupied non-operational positions shall terminate no later than 31 Mar 03.
D. New agreements for service in non operational positions shall normally be authorized as Class B. In extraordinary circumstances exceptions to this limitation may only be granted by ADM (HR-MIL).
E. Concept such as a short duty engagement with the Regular Force of several years duration will be explored as a replacement for some elements of Class C service in non operational positions.
[56] Armstrong's affidavit indicates that he served as a Personnel Services Officer (Class "C"
Classification) in the Deputy Chief of Defence Staff Group from March or April of 2000 until June of 2002. His call out expired in June 2002. (Cross-examination of Armstrong, question 43, the respondent's record at pp. 191, 192). He then served on Class "B" service as a student at CF College, on a two to three-week course, in early July 2002. On July 22, 2002, he took up his position at DOL, a Class "B" position, as evidenced by the Route Letter and Acknowledgement Statement (certified tribunal record at pp. 81-83 of the respondent's record).
[57] In describing Armstrong's position, the Grievance Authority stated:
You were employed as Senior Policy Officer on CL B service in DOL at National Defence Headquarters (NDHQ) in Ottawa, Ontario, on 22 July 2002. This position was subsequently renamed "DOL Project Officer". This position is a Reserve Force Temporary Augmentation Position loaned from the NDHQ Primary Reserve List (PRL) for a period of three years. The term of your engagement was for 253 days to cover the period from 22 July 2002 to 31 March 2003. This was subsequently amended to 2 June 2003. Your CL B service was extended for three more successive periods.
[58] In considering Armstrong's grievance, the Grievance Authority adopted the following interpretation regarding the classification of service:
Article 9.08 states that a member of the Reserve Force is on Reserve CL C service when, with the approval of the CDS, the member is on full-time service and is employed in a Regular Force establishment position or is supernumerary to Regular Force establishment, or when a member on (sic) an operation of a type approved by or on behalf of the CDS.
QR & O Article 9.07 states that, with the approval of the CDS or an authority designated by him, a member may be employed on CL B service on duties of a temporary nature when it is not practical to employ members of the Regular Force on those duties.
Both QR & O provide that the CDS, or his delegated authority, must authorize the employment as either CL B or CL C.
[...]
I agree that you are employed on full-time service. However, you are not in a Regular Force position. You are in a temporary CL B position from the PRL and your employment was not approved as CL C by the CDS pursuant to paragraph 1 (a) or (b) of QR & O Article 9.08. You are not supernumerary to the Regular Force establishment and you are not deployed on operations. Therefore, you do not meet the requirements of CL C service as specified in QR & O Article 9.08
[...]
CANFORGEN 023/02 provides that employment in non-operational positions shall normally be authorized as CL B and exceptions may only be granted by Assistant Deputy Minister (Human Resources-Military) (ADM (HR-Mil)) in extraordinary circumstances.
[59] In my view, the Grievance Authority appropriately referred to the definition of "operations" contained in CANFORGEN 023/02. The definition contained in the operations manual, dealing with "operations", is totally unrelated to Armstrong and the work that he is performing. In order to qualify as being on an "operation", he would necessarily have to come within the operations defined by CANFORGEN 023/02. This he could not do.
[60] In a similar vein, the definition of "temporary" contained in CFAO 20-5 deals with the performance of temporary services, outside of one's regular unit, and the attendant matters thereto, such as expenses, travel and the like. It is not concerned with employment or employment classifications in any sense.
[61] Regarding Armstrong's submission that his duties are not temporary, CANFORGEN 023/02 specifically contemplates short duty engagement of several years duration. It is not disputed that Armstrong's initial call out for his current position was renewed for three subsequent periods and that, in each instance, he was offered continuing employment for a limited period of time (less than twelve months).
[62] I do not read the Grievance Authority's decision as ignoring the definition of "duty" in section 33 of the NDA. Rather the task was to determine whether Armstrong's duties were temporary. While the duties at DOL may, or may not, be ongoing, it does not necessarily follow that Armstrong's duties are ongoing. Moreover, on cross-examination, Armstrong acknowledged that his current position is in the "Land Force Command, Primary Reserve List" (cross-examination of Armstrong, question 79, the respondent's record at p. 199).
The Grievance Authority noted:
[A]s a member of the CF, the NDA provides for you to be called out on a series of temporary periods. As a reservist, your status as a CF member is constant but your service can properly be a series of call-outs of fixed duration.
[63] In relation to conflict between the QRO and CANFORGEN 023/02, the Grievance Authority agreed that the QRO prevailed over CANFORGEN 023/02. The Grievance Authority found Armstrong's interpretation of articles 9.07 and 9.08 incomplete because both articles make the call outs conditional upon the approval of the CDS or his designated authority. Additionally, article 9.08 provides explicit authority for the CDS to approve operations to which Class "C" service applies.
[64] In sum, at the time Armstrong began his duty with the DOL, it was a Class "B" position. Although he had previously been a Class "C", when he was employed with the Deputy Chief of Defence Staff Group, that position was of two-years duration. Armstrong's personnel record indicates that he has held a number of positions since he transferred to the Reserve Force, including full-time employment as a non-military employee in the Federal Public Service.
[65] Armstrong could not come within the transitional Class "C" provision of CANFORGEN 023/02 because he was not on operations, deployed operations, MCDV crew, or local contingency operations, including increased security measures. His Class "C" position terminated in June 2002. He accepted a Class "B" position in July 2002. He could not benefit from the provision, that provided for honouring existing agreements for reservists serving on Class "C" in non-operational positions, because he did not have a Class "C" position. In entering his new position, the provisions of subparagraph 5 D of CANFORGEN 023/02 came into play, that is, service in non-operational positions would be normally authorized as Class "B". Armstrong made no request under the extraordinary circumstances provision. Under CANFORGEN 023/02, Armstrong is subject to a Class "B" classification.
[66] The same result occurs under articles 9.07 and 9.08 of the QRO. To come within article 9.08, he must be serving in a Regular Force establishment position. His position is a Reserve Force Temporary Augmentation Position loaned from the Primary Reserve List. Moreover, he lacks the requisite Class "C" approval by the CDS. Rather, his duties are temporary because they are of fixed duration and he does have the requisite Class "B" approval by the CDS.
[67] This is the conclusion at which the Grievance Authority arrived. The majority of the determinations are the result of factual findings made by the Grievance Authority and those factual findings are not patently unreasonable. Insofar as the factual findings involve application to the provisions of the legislation and the policy, they cannot be said to be unreasonable.
[68] The reasonableness standard of review is discussed at length in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247. The Court examines the circumstances where a decision will be regarded as unreasonable as well as the function of the reviewing court, at paragraphs 55 and 56, as follows:
¶ 55 A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
¶ 56 This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.
[69] The decision of the Grievance Authority, unquestionably, provides an analysis that could reasonably lead the decision-maker from the evidence to the conclusion. The reasons withstand the scrutiny of a somewhat probing examination. Consequently, Armstrong's argument in this respect must fail.
IX. Reasonable Apprehension of Bias
[70] The crux of the argument is that the Grievance Authority was directly involved in the procedural steps leading up to the creation and implementation of the classification system in question. Armstrong alleges that there is a strong perception of bias given the Grievance Authority's involvement as promulgator and final decision-maker. Further, it is urged that the Grievance Authority accepted the wrongful findings of the Initial Authority without question and without proper review of the case. Most importantly, it is said that the Grievance Authority was a member of the group of individuals responsible for the implementation of the new classification policy.
[71] The respondent has raised the issue of waiver. I do not intend to deal with it. Notwithstanding the lack of evidence from Armstrong on "reasonable apprehension of bias", I accept that the grievance process is a paper exercise and, on the basis of the record, that Armstrong would not have known that the CDS had delegated his grievance to the Grievance Authority until such time as he was in receipt of the decision. Thus, waiver is not in issue.
[72] I reject Armstrong's suggestion that the Grievance Authority accepted the "wrongful findings of the Initial Authority without proper review of the case". This contention is without merit. Even the most cursory review of the reasons of each of the grievance levels reveals that this is simply not so. The Grievance Authority undertook an independent and comprehensive review of the matter and did not merely accept the findings of the first level decision-maker.
[73] The test for establishing the existence of a reasonable apprehension of bias is articulated in Committee for Justice and Libertyv. Canada(National Energy Board), [1978] 1 S.C.R. 369">[1978] 1 S.C.R. 369 at pp. 394-395 and requires that the apprehension be real and be held by reasonable persons applying themselves to the question and obtaining the required information. The question is: what would an informed person, viewing the matter realistically and practically, having thought the matter through, conclude? The grounds must be substantial and the test should not be related to the very sensitive or scrupulous conscience.
[74] The threshold for establishing a claim of reasonable apprehension of bias is high and substantial grounds are necessary to support such a claim. Whether it arises will depend entirely on the facts of the case for, while the threshold is high, it can be displaced with cogent evidence: R. v. R.D.S, [1997] 3 S.C.R. 484 at pp. 531-532.
[75] What then is the evidence here? Armstrong argues that the Grievance Authority was directly involved in the planning, promulgation and implementation of the classification policy. However, there is absolutely no evidence to support this sweeping allegation.
[76] The evidence before me establishes that the Grievance Authority began serving as a legal officer in the Office of the Judge Advocate General (JAG) on December 1, 1980. As a legal officer, he was responsible for assisting the JAG in providing legal advice to the Governor General, the Minister of National Defence and the Canadian Forces. On August 1, 2001, he was appointed to the position of Special Advisor to the Assistant Deputy Minister (Human Resources Military), a position that was later transformed into DJAG/HR-Mil. He remained in that position until February 28, 2003, when he was appointed Director General, Canadian Forces, Grievance Authority. In the latter position, he was responsible for providing legal advice to the Assistant Deputy Minister (Human Resources Military). At the time the policy on Reserve Service was developed, he was responsible for providing legal advice, if requested, to the Assistant Deputy Minister (Human Resources Military).
[77] This is a far cry from the circumstances in 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919 (Régie)where the Supreme Court determined that institutional bias may arise in circumstances where a lawyer's functions within a statutory scheme are not adequately separated. A certain degree of flexibility, in relation to impartiality, is appropriate in the case of administrative agencies. A discussion of Régie is provided in Benitez v. Minister of Citizenship and Immigration 2006 FC 461 at paras. 191-195.
[78] In the absence of any evidence that the Grievance Authority was involved in the development and implementation of the policy, and in the absence of any evidence of improper motive or irrelevant consideration, I am unable to conclude that Armstrong has satisfied the test for establishing the existence of a reasonable apprehension of bias.
[79] For the foregoing reasons, the application for judicial review will be dismissed. The respondent has requested and is entitled to costs. A judgment will so provide.
"Carolyn Layden-Stevenson"
Ottawa, Ontario
April 21, 2006
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