Date:
20120618
Docket:
T-1810-11
Citation:
2012 FC 750
Ottawa, Ontario, June 18, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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CAPTAIN KIMBERLY Y. FAWCETT
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review of a decision of the Director General, Canadian
Forces Grievance Authority [DGCFGA], dated September 23, 2011, denying the
redress sought by the applicant in a grievance submitted pursuant to section 29
of National Defence Act, RSC, 1985, c N-5 (NDA). For the reasons
that follow the application is granted.
Facts
[2]
The
applicant, Captain Kimberly Y. Fawcett, currently serves in the Canadian Forces
as an Air Logistics Officer. She joined the Canadian Forces on December 18,
1996. Her husband, Major Curtis Smith, is also a member of the Canadian
Forces.
[3]
In
February 2006, both the applicant and her husband were serving in high
readiness units of the Canadian Forces in Kingston, Ontario. The applicant
returned from maternity leave on February 6, 2006. Upon her return she was
ordered to prepare a Family Care Plan (FCP) pursuant to Defence Administrative
Order and Directive 5044-1 and Canadian Forces Joint Support Group [CFJSG]
Standing Order 35-1. Through negotiations with their respective supervisors,
the applicant and her husband crafted an FCP that would accommodate their
daycare needs and their own readiness requirements for the Canadian Forces. The
usual schedule was for her husband to drop their son off at daycare in the
morning, while the applicant would pick their son up in the afternoon.
[4]
On
February 20, 2006, the applicant’s husband was contacted by his unit and
ordered to arrive at work early the next day to complete high readiness
training for an imminent deployment. As a result, the applicant contacted her
supervisor on the morning of February 21, 2006, to inform him that she would be
activating her FCP and therefore would arrive at work later than usual, to
which the supervisor agreed.
[5]
While
driving her son to daycare that morning, Captain Fawcett and her son suffered a
catastrophic motor vehicle accident. Her son was killed and she suffered
serious injuries, ultimately requiring amputation of her right leg above the
knee.
[6]
The
applicant applied to the Department of Veterans Affairs for disability benefits
in June 2006, and that application was denied on October 6, 2006. The
applicant received a copy of the Summary Investigation into her accident which
was accompanied by a cover letter from Commander CFJSG, Colonel C.C. Thurrott (Commander
Thurrott). The Summary Investigation found that the applicant was on duty at
the time of the accident but Commander Thurrott disagreed with that finding. The
applicant states that she chose not to pursue this matter further at the time,
but rather to focus on her rehabilitation.
[7]
After
learning from a colleague, and from her Pension Advocate, that significant
weight is placed on the Summary Investigation in determining duty status, the
applicant decided to file a grievance regarding the Summary Investigation. The
applicant submitted her grievance on June 2, 2009.
[8]
It
is common ground between the parties that the grievance was initially
determined by the improper authority. The applicant received a decision in
September 2009 from the Director General, Personnel and Family Support (DGPFS).
However, the DGPFS could not act as the Initial Authority (IA) for the
grievance because, pursuant to Queen’s Regulations and Orders for the
Canadian Forces (QR&O) article 7.06, an IA must be a military officer. Despite
a considerable amount of correspondence among the applicant’s superiors over
several months the proper IA was never identified. The applicant was asked
whether she would like to restart the process at the IA level, or forward her
grievance to the Final Authority (FA). She chose the latter.
[9]
The
grievance was referred to the Canadian Forces Grievance Board (Grievance Board)
for an independent review and recommendation. The Grievance Board recommended
that the applicant’s grievance be denied on October 7, 2010. The applicant
submitted additional information and commentary in response to this
recommendation before the DGCFGA issued its decision on September 23, 2011.
Decision Under Review
[10]
The
DGCFGA noted that the applicant’s grievance was in relation to whether she was
on duty at the time of her accident, whether her injuries were attributable to
military service, and whether she had received a fair process.
Duty Status
[11]
The
DGCFGA noted that the relevant policy in determining whether the applicant was
on duty was Canadian Forces Administrative Order (CFAO) 24-6, which states in
part: “…as a general rule a member is considered to be on duty:…d. when he is
at a specific place, or doing a specific act, because of a military order;…”.
[12]
The
DGCFGA found that the applicant was not on duty at the time of the accident. The
DGCFGA held that the FCP is not a military order, but rather is a management
tool for the Canadian Forces to ensure its members are available for duty
despite family obligations. He noted that the Canadian Forces do not dictate
the contents of an FCP or how any care of dependents is carried out; rather,
the Canadian Forces only requires that an FCP is in place.
[13]
The
DGCFGA further found that the fact the applicant called her supervisor to
indicate that she would be late is consistent with the conclusion that she was
not on duty or executing an order by driving her son to daycare. The DGCFGA
also rejected the applicant’s submission that members of the Canadian Forces
are always on duty.
Whether the Injuries were Attributable to Military
Service
[14]
The
DGCFGA noted that paragraph 30 of CFAO 24-6 states: “As a general rule
‘attributable to military service’ is interpreted as meaning arose out of or
was directly connected with service.” The DGCFGA noted that this wording is
the same as section 21(2)(a) of the Pension Act, RSC, 1985, c P-6, and
thus the interpretation of that provision by the courts is helpful in this
analysis.
[15]
The
DGCFGA found that the relevant question is one of causal connection and
proximity; the accident must be proximate enough to the applicant’s military
service to meet the requirements of CFAO 24-6. The DGCFGA quoted from Amos
v Insurance Corp of British Columbia, [1995] 3 S.C.R. 405, para 21, which held
that the phrase “arising out of” should be given a liberal interpretation.
[16]
The
DGCFGA found that the applicant’s grievance was analogous to McTague v Canada (Attorney General), [2000] 1 FC 647, in which a member was seriously injured
crossing the street to go to a restaurant while on duty. The Court in that
case found that the member was not required to eat at a particular restaurant,
and the dinner served no ‘business’ purpose, and therefore the Board’s
conclusion was reasonable.
[17]
The
DGCFGA noted that the Grievance Board had cited Frye v Canada (Attorney General), 2004 FC 986, in its recommendation. In that case, the Federal Court
had found, based on interpreting the French and English versions of the
provision together, that the proper test was whether an accident was “directly
connected with” service, rather than “arose out of” service. The DGCFGA went on
to note that the Federal Court of Appeal (FCA) had overturned the Federal Court
decision in that case, finding that the broader test (“arose out of”) is
consistent with the intention of the legislation. However, the DGCFGA found
this did not alter the Grievance Board’s conclusion.
[18]
Finally,
the DGCFGA cited Fournier v Canada (Attorney General), 2005 FC 453, in
which a member was injured during a motor vehicle accident while on a meal
break. The DGCFGA applied the factors articulated in that case to the
applicant’s grievance: the applicant was taking her child to daycare; the
Canadian Forces had no control over her choice of daycare, the chosen route, or
the FCP; and the applicant was driving her own vehicle. The DGCFGA therefore
concluded that the applicant’s injuries did not arise out of military service.
Process Issues
[19]
The
DGCFGA noted the Grievance Board’s conclusion that the applicant had not been
prejudiced by the fact that there was no valid decision at the IA level, and
then stated:
I
acknowledge that, due to the errors in process, you may have been prejudiced
because the CMP did not adjudicate your grievance. That said, I am of the view
that any deficiencies in the process have been corrected since you have had the
opportunity to respond to the disclosure of information on your file and you
are being provided with an additional review by the [Grievance Board],
disclosure of their findings and recommendations, and an adjudication by the FA
with consideration of all the facts provided.
Accordingly, I am satisfied that
you have been treated in a fair and equitable manner in comparison to other CF
members in similar circumstances.
[20]
The
redress sought by the applicant was therefore denied.
Standard of Review and Issues
[21]
This
application raises the following issues:
a. Did the DGCFGA
err in finding no breach of procedural fairness?
b. Did the DGCFGA
err in finding that the applicant’s injuries were not attributable to military
service?
c. Did the DGCFGA
err in finding that the applicant was not on duty?
[22]
As
the parties agree, questions of procedural fairness attract a standard of
review of correctness, while the questions of whether the injuries were
attributable to service and whether the applicant was on duty are to be
reviewed on a standard of reasonableness; Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
Did the DGCFGA err in finding no
breach of procedural fairness?
[23]
The
applicant argues that she was denied a valid decision on her grievance at the
IA level, which prejudiced her because the proper IA decision-maker, the CMP,
indicated in a cover letter attached to her grievance that he found the
grievance to be well-founded.
[24]
The
proper process is for the grievor to submit his or her grievance to the IA
(generally a commanding officer), who issues a decision. If the grievor is not
satisfied with the result, he or she can refer the grievance to the FA for a
second, independent decision. If a favourable decision is
reached by the IA, there is of course no need for further recourse to the FA.
[25]
The
DGCFGA acknowledged that there was no valid decision at the IA level because
the purported decision-maker was not a military officer. The DGCFGA further
found that the applicant may have been prejudiced by this procedural error, but
this error was subsequently corrected because the applicant was given the
opportunity to respond to all the information in the file and to review the
findings of the Grievance Board.
[26]
In
my view, this analysis is erroneous. The fact that the applicant was able to
participate fully in the subsequent decision by the FA does not rectify the
error that deprived her of a decision at the IA level. In other words, the
applicant was entitled under this procedure to an IA decision, and was denied
one. The right to participate in the decision at the FA level does not correct
this error because there would have been no need for a decision at the FA level
if the IA decision had been favourable.
[27]
The
respondent submits that the procedural error was cured when the applicant was
offered the choice of either restarting the process at the IA level, or proceeding
to the FA level. The respondent argues that since the applicant chose the FA
option, it is not now open to her to claim that she was prejudiced by the
absence of an IA decision.
[28]
However,
I agree with the applicant that her choice to restart the grievance with the
(still unidentified) IA or continue to the FA cannot be fairly called an
informed choice. After several months trying to get an answer regarding the
identity of the IA, no answer had been forthcoming. Her decision was based on
the considerable delay that had already transpired, and remaining uncertainty
caused by the initial breach of fairness. Therefore she cannot be found to
have clearly waived her right to procedural fairness, which in my view included
a right to a decision at the IA level. Thus, the application for judicial
review must be granted.
Did the DGCFGA err in finding that the applicant’s
injuries were not attributable to military service?
[29]
While
the application must be granted because of the breach of procedural fairness, I
further find that the DGCFGA’s analysis of whether the injuries were
attributable to military service was unreasonable. The DGCFGA identified the
correct test in this analysis: whether the injuries arose out of or were
directly connected to service. The DGCFGA also rightly noted that the Supreme
Court of Canada has given the phrase “arose out of” a broad and liberal
interpretation (Amos, above). However, the DGCFGA did not follow the
appropriate precedents in applying a broad and liberal interpretation.
[30]
The
DGCFGA relied extensively on the Federal Court decision in Frye. However,
the FCA overturned that decision for applying too narrow a test for whether an
accident was attributable to service. The DGCFGA acknowledged that the FCA had
reversed the Federal Court and noted therefore that the FCA’s reasons “provide
more appropriate guidance on this point.” However, the DGCFGA found, without
any further analysis, that this reversal would not alter his conclusion.
[31]
I
would emphasize that Frye was the only case at the FCA level cited by
the DGCFGA, and therefore ought to have been given close attention and
considerable weight in the analysis. Also, the Federal Court decisions relied
upon by the DGCFGA were issued prior to the FCA decision in Frye. The DGCFGA’s
failure to follow the Frye decision, particularly given its similarities
to this case, renders his decision unreasonable.
[32]
In
Frye, the applicant’s husband had been on deployment fighting forest
fires and he left camp in breach of curfew at the end of the day to go for a
swim. On his way back to camp, he tried to hop a fence, fell onto a highway
and was struck and killed. The Veterans Review and Appeal Board (VRAB) found
that the death was not attributable to military service because at the time the
member died, he was engaged in recreational activity rather than service. The
FCA set aside the conclusion of the VRAB, finding its approach contrary to the
broad and liberal interpretation required:
[31] The
Board seems thus to have treated recreational activities and military service
as mutually exclusive categories, so that, since the Corporal Berger's death
occurred while engaging in recreational activity, it did not arise out of
military service. In so reasoning, the Board failed to look at all the
circumstances in order to determine whether, while linked to recreational
activity, Corporal Berger's death was not also sufficiently causally linked to
military service that his death could be said to have arisen out of military
service. This narrow approach to the phrase "arose out of or directly
connected with" is not consistent with the liberal and generous
interpretative approach to the Act that is required by law.
[33]
Also,
of particular relevance to this case, the FCA found that the Board unreasonably
ignored the link between the member’s activities at the time of his death and
the military policy that was in place regarding recreation:
[34] In
this context, [the VRAB] should have given weight to the statement of the
Commanding Officer, Lieutenant-Colonel Leslie, to the effect that, in order to
ensure that soldiers did not become overly fatigued as a result of the arduous,
dangerous and dirty nature of fighting forest fires for long hours, he had
authorized the establishment of a recreation and relaxation policy.
[34]
In
my view, this is analogous to the policy regarding the FCP; the Canadian Forces
instituted the FCP policy to maximize the deployability and operational
readiness of its members. This, according to the guiding precedent in Frye,
was a relevant factor that should have been given weight, but was not. The
DGCFGA found that the Canadian Forces had no control over the content of the
applicant’s FCP; however, the same could equally be said in Frye; the
Canadian Forces did not control the type of recreation engaged in by the
member, or where he engaged in it. Thus, the DGCFGA failed to consider all the
circumstances in determining whether the applicant’s injuries were attributable
to military service, and therefore the application must be granted.
[35]
I
would note that the respondent has questioned whether the applicant was in fact
acting pursuant to her FCP at the time of the accident. However, her evidence
that she was implementing her FCP is uncontradicted and at all levels of the
process it appears to have been accepted that she was implementing her FCP; her
grievance was denied because the FCP was considered not to be a military order.
In my view, therefore, it is not open to the respondent to raise this line of
argument at this stage.
[36]
Therefore,
the DGCFGA’s decision should be set aside and the matter referred back to the Initial
Authority for reconsideration. It is not necessary to consider the final
ground of review advanced by the applicant.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application
for judicial review is granted and the matter is referred back to the Initial
Authority for reconsideration. Costs to the applicant.
"Donald
J. Rennie"
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