Date: 20120126
Docket: T-579-11
Citation: 2012 FC 101
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, January 26, 2012
PRESENT: The Honourable
Madam Justice Bédard
BETWEEN:
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MAJOR MICHEL ROMPRÉ
(RETIRED)
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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 entered the Canadian Forces (CF) as a reservist in 1986. In April
2003, he volunteered to be deployed in Afghanistan, where he was attached to an
American-British unit in Kabul. During his deployment, the applicant
accidentally discharged his firearm on two occasions. Following these
incidents, he was repatriated to Canada.
[2]
Upon his
return to Canada, several administrative actions were imposed on him. The
applicant challenged a number of these actions with three grievances. On March
2, 2011, the Chief of the Defence Staff (CDS) upheld all of the applicant’s
grievances and ordered various remedies. The applicant filed an application for
judicial review of certain aspects of the CDS’s decision. The applicant is
criticizing him for not granting some of the remedies sought and for not declaring
that he was the subject of harassment by the chain of command.
I. Background
[3]
The
applicant had been a reservist in the CF for over 17 years when he was deployed
to Afghanistan as a strategic planning officer. The applicant was deployed
under unusual conditions. On April 15, 2003, he volunteered for a deployment that
started on May 14, 2003, and that was supposed to go until October 29, 2003.
Considering the short period of time before his departure, the applicant was
deployed without receiving usual pre-deployment training.
[4]
While he
was deployed, the first incident took place on August 27, 2003, when the
applicant accidentally discharged his firearm. Despite this incident, he was
granted an extension of his assignment in Afghanistan for the period of October
23 to November 22, 2003. On October 27, 2003, the applicant once
again accidentally discharged his firearm.
[5]
On
November 1, 2003, the commander of the task force in Kabul, Major General A.B. Leslie,
ordered his repatriation to Canada. The repatriation letter is very severe with
respect to the applicant and Major General Leslie recommended, namely, that the
applicant not be authorized to take part in operational deployments. Here is an
excerpt from the letter:
2. . . . He has lost my
confidence in his ability to perform his duties as the Canadian Strategic
Planning Officer Coalition Training with OMC-A based on his inability
to safely handle weapons endangering not only himself but others. As well, he
has compromised his effectiveness and credibility with not only TFK but with
our allies. This lost of trust stems from Major Rompre’s displayed lack of the
most basic of professional soldier skills safe weapon handling. His
continued presence in theatre presents an unacceptable potential risk to his
fellow soldiers. Two charges for the NDs have been laid against Maj Rompre and
he has elected Court Martial in both cases.
3. I have grave doubts about the
professional abilities, common sense and basic soldier skills of this officer.
I believe his performance and conduct to be unacceptable, and would provide my
strongest advice that this officer not be allowed to take part in any future
operational deployments. . . .
[6]
Several
administrative actions followed the applicant’s repatriation.
[7]
On
February 8, 2004, Major General Leslie recommended that the applicant not
receive the general campaign star for his mission in Afghanistan. This
recommendation was approved by the Deputy Chief of the Defence Staff on
September 7, 2004.
[8]
On July 24,
2004, two violation notices were submitted to the court martial regarding the
accidental discharges. The applicant pleaded guilty to the charges of “conduct
to the prejudice of good order and discipline” and was given a severe reprimand
and fined $1,500.
[9]
On
September 28, 2004, the commander of 34 Canadian Brigade Group, Colonel Y. Duhamel,
asked commander Lieutenant-Colonel L. Benoit of the Régiment de Maisonneuve, to
which the applicant was attached, for his recommendation with respect to the
continuation of the applicant’s career within the CF further to his
repatriation. On October 14, 2004, the commander of the Régiment de Maisonneuve
recommended, taking into account the seriousness of the circumstances
surrounding the court martial charges and the excellent service rendered by the
applicant to the Régiment de Maisonneuve, that he be kept in the CF, that he be
issued a recorded warning for professional shortcomings and be provided with a
requalification program for the 9-mm pistol.
[10]
On October
26, 2004, a recorded warning for professional shortcomings was placed in the
applicant’s file.
[11]
On
November 28, 2004, Colonel Y. Duhamel informed the Land Force Quebec Area
Headquarters (LFQA HQ) of his and Lieutenant-Colonel L. Benoît’s recommendations
with respect to the applicant’s future in the CF. He noted the applicant’s
excellent service in the Régiment de Maisonneuve, the sentence imposed by the
court martial and the recorded warning imposed on the applicant. He also noted
that it would be very difficult to consider the applicant’s candidacy for potential
missions, but specified that he was in agreement with Lieutenant-Colonel L.
Benoît’s recommendation keep the applicant in the CF. He finished by specifying
that he believed that the file could be considered closed.
[12]
On April 19,
2005, the LFQA HQ deputy commander, Brigadier-General Marc‑André Préfontaine,
decided that the applicant could continue to serve in the CF but could not be
employed in international or domestic contingency operations until further
notice.
[13]
In June
2005, more than two years after his repatriation, the applicant received his
personnel evaluation report (PER) for the period of May 15 to October 15, 2003,
the time when he was deployed in Afghanistan. It should be noted that it was a
replacement report because the original had been lost. The PER was signed by
Lieutenant-Colonel M.G. Mussolum, Colonel M.D. Hodgson and Major-General
Leslie. The PER shows an unsatisfactory performance and contains only negative
elements. It focuses on the two accidental discharges and on the applicant’s
attitude with respect to those two incidents.
[14]
On October
4, 2005, the applicant’s commander served him a notice of his intention to
place him on counselling and probation for insubordination within his unit. The
applicant challenged this notice, which was set aside and replaced by a recorded
warning for professional shortcomings dated February 28, 2006.
[15]
The
applicant challenged the above-mentioned actions with three grievances.
[16]
The
grievance procedure is set out in section 29 of the National Defence Act,
RSC, 1985, c N-5 (Act) and the CDS is the final authority (section 29.11).
Certain types of grievances, including the grievances filed by the applicant, are
subject to a preliminary review by the Grievance Board, an independent
tribunal that reviews grievances and makes recommendations to the CDS (sections
29.12 and 29.2). The CDS is not bound by any finding or recommendation by the
Grievance Board, but if he does not act on one, he shall include the reasons
for not having done so (section 29.13).
[17]
In this
case, the CDS adopted almost all of the Grievance Board’s recommendations.
II. Impugned decision
[18]
The CDS’s
decision is exhaustive and 16 pages long. In his decision, the CDS gave a
detailed explanation of the context of each grievance, the remedies sought by
the applicant and his analysis of each grievance. In his decision, the CDS set
aside the following administrative actions and ordered the withdrawal of the
documents applicable to those actions from the applicant’s file:
a. The mission PER;
b. The recorded warning dated
October 26, 2004, for professional shortcomings;
c. The decision dated April 19,
2005, to not redeploy the applicant;
d. The decision to not award him
the general campaign star;
e. The recorded warning dated
February 28, 2006, for professional shortcomings.
[19]
However,
the CDS did not order all of the remedies sought by the applicant. Namely, he
refused to withdraw from his file the letter dated March 1, 2003, by Major‑General
Leslie that ordered his repatriation and contained the recommendation to not redeploy
him. He also refused to order that a new mission PER be rewritten to replace the
one that was set aside. The grievances also contained monetary demands and a
request that the authors of the actions imposed on the applicant be subject to
disciplinary action. The CDS rejected this last request and found that he did
not have jurisdiction to award monetary compensation.
III. Issue
[20]
The
applicant makes three criticisms of the CDS’s decision that are all related to
the same issue: Is the CDS’s decision reasonable?
IV. Standard of review
[21]
The
respondent submits, and I share his opinion, that the CDS’s decision should be
reviewed on the standard of reasonableness.
[22]
In Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir), at
paragraph 62, the Supreme Court indicated that the first step in analyzing
the standard of review consists in verifying “whether the jurisprudence has
already determined in a satisfactory manner the degree of deference to be
accorded with regard to a particular category of question”. In this case, the
CDS is the most senior officer in the CF and he is charged with control and
administration of the CF. For grievances and, more particularly, when
appropriate remedies must be determined, he has significant discretion. The
issues he had to decide in this case are questions of mixed fact and law that
fall under his expertise and his specific knowledge of the military environment.
[23]
Our Court
has already determined that it must show deference to such issues, which had to
be reviewed on the standard of reasonableness (Jones v Canada (Attorney
General), 2009 FC 46 at paragraph 23, 339 FTR 202; McIlroy v Canada (Attorney
General), 2011 FC 149 at paragraph 29 (available on CanLII); Birks v
Canada (Attorney General), 2010 FC 1018 at paragraph 25-27, 375 FTR 83; Moodie
v Canada, 2009 FC 1217 at paragraph 18, 356 FTR 304.
[24]
In Dunsmuir,
above, the Supreme Court set out the analytical framework for the Court when it
is reviewing a decision according to the reasonableness standard:
47 Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting
a review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision‑making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[Emphasis
added.]
[25]
Recently
in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 at paragraph 13 (available on CanLII), the Supreme
Court noted and further developed the principles that should guide the
application of the reasonableness standard. The Court stated the following regarding
the deference courts must show to decisions within the expertise of specialized
tribunals:
13 This, I think, is the context for
understanding what the Court meant in Dunsmuir when it called for
“justification, transparency and intelligibility”. To me, it represents a
respectful appreciation that a wide range of specialized decision-makers
routinely render decisions in their respective spheres of expertise, using
concepts and language often unique to their areas and rendering decisions that
are often counter-intuitive to a generalist. That was the basis for this
Court’s new direction in Canadian Union of Public Employees, Local 963 v.
New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, where Dickson J. urged
restraint in assessing the decisions of specialized administrative tribunals.
This decision oriented the Court towards granting greater deference to
tribunals, shown in Dunsmuir’s conclusion that tribunals should “have a
margin of appreciation within the range of acceptable and rational solutions”
(para. 47).
V. Analysis
A. Position of the
applicant
[26]
The applicant
challenges three aspects of the CDS’s decision.
[27]
The first
criticism involves the remedy the CDS ordered regarding the grievance with
respect to the mission PER.
[28]
The CDS
found that the PER should be set aside. First, he noted that information about
the second accidental discharge, the applicant’s attitude further to the accidental
discharges and his repatriation should not have been included in the PER
because they involved events that occurred after the period covered by the PER.
The CDS also considered that the evaluators did not take into account the
laudatory comments with respect to the applicant made by the foreign officers
who supervised him during his deployment in Afghanistan or the specific
circumstances of his deployment. In that respect, the CDS noted that the
applicant did not receive pre-deployment training or a performance development
review (PDR) [a document that contains a statement of the duties and
expectations of the deployed personnel], or adequate coaching upon his arrival
in Afghanistan. The CDS also found that the PER focused too much on the
negative elements surrounding the two accidental discharges and that it was biased.
The CDS also thought that the applicant’s performance could not have been as
mediocre as was described because the chain of command had extended his service
on two occasions. He therefore cancelled the PER and ordered that it be withdrawn
from the applicant’s file.
[29]
The
applicant also asked that his PER be rewritten on the basis of the evaluation written
by his British superior, Lieutenant Nayle, in October 2003. That evaluation
reads as follows:
Major Rompré has played a vital part in
the success of the Afghan National Army Plans and Design Team (ANA PDT) over
the last six months. He has been responsible for liaison with, and coordination
of training by, non-US coalition members and all the national contingents
within ISAF.
. . .
He is a very hard working, dedicated and
committed officer. He is reliable, honest and very conscientious and he has
shown great enthusiasm, and dogged persistence in his efforts to persuade
national contingents to provide training for the ANA. All of which has been in
addition to their operational commitments. His success in this has been the
clearest possible indicator of his initiative, resourcefulness and
effectiveness as a problem solver.
However, he is open and frank to the
point of bluntness and tact is not one of his most obvious attributes.
Therefore, despite his undoubted value to the PDT, he has not always been as popular
with some team members as he might have been.
Major Rompré is an efficient and very
effective officer who has made a very real contribution to the establishment of
the ANA, something he has every right to be proud of.
[30]
The CDS
noted the remedy sought by the applicant, but did not allow his request. His
decision in that respect reads as follows:
[translation]
Even after the CFGB [Grievance Board]
released its findings and recommendations, you still wanted your PER to be
rewritten so that there would be a document describing your mission in
theatre. Although that would have been ideal, I share the CFGB’s
recommendation in this regard. Since seven years have elapsed and the parties
are entrenched in their respective positions, rewriting the PER is impossible.
Consequently, your theatre PER for the period from May to October 2003 will be
removed from your personnel records and sent to the Director General Canadian
Forces Grievance Authority (DGCFGA) to be appended to your grievance file and
managed in accordance with the Library and Archives of Canada Act with
respect to its final disposition. Moreover, I believe it would be
inappropriate for your theatre PER to be replaced by a document that has not
been verified or reviewed by those who were with you at the time of your
deployment.
[31]
The
applicant agrees with the CDS’s decision to set aside and withdraw the existing
PER from his file. However, he criticizes the CDS for not ordering that his PER
be rewritten. The applicant disagrees with the CDS for finding that it was
impossible to rewrite the PER because the authors of the PER remained unchanged
in their position, that more than seven years had passed since the period in
question and that the evaluation by Lieutenant-Colonel Nayle had not been reviewed.
The applicant raises the following arguments. He maintains that his performance
in Afghanistan was recognized by various independent sources and, more
particularly, by Lieutenant‑Colonel Nayle, and that this evaluation is
consistent with the performance evaluations he had received throughout his
career. He also argues that this evaluation is neutral and mentions both
positive and negative aspects of his performance. The applicant adds that the
mission PER of a colleague who was with him in Afghanistan was in large part based
on the evaluation done by Lieutenant‑Colonel Nayle and that it is
unreasonable for the CF to refuse to do the same thing in his case. The
applicant also claims that the CDS, because he had already invalidated all of
the opinions issued by the chain of command, should have done more and ordered that
the PER be rewritten. Regarding the delay raised by the CDS, the applicant
insists that all of the delays are attributable to the CF and that he should
not have to pay for them.
[32]
The
applicant stresses the impact of the absence of a PER for his deployment in Afghanistan.
He contends that the CDS eliminated the consequence of the biased PER, but
that, by not replacing it, he deprived him of any meaningful remedy. First, the
applicant indicates that all military personnel must have a mission PER and
that the lack of a PER does not highlight his actual performance during his
mission in Afghanistan, diminishes the value of his military career and reduces
his chance of a promotion. He adds that the lack of a PER for such an important
mission puts a hole in his career path that would cast doubt in the mind of any
senior officer in the CF. Since the incidents, the applicant was voluntarily released
from the CF, but stated to the Court that he intended to re-enrol now that his
reputation has been restored by the CDS’s decision. In his opinion, the absence
of a PER will negatively affect his re-enrolment and/or will compromise his
opportunities for advancement within the CF. The applicant adds that the lack
of a mission PER places him in a situation where he will always have to provide
explanations and defend his record in the eyes of potential superiors.
[33]
He
criticizes the CDS for not measuring the consequences and the harm he suffers
due to the lack of a PER. He also submits that the CF would have suffered no
harm if his PER had been rewritten. The applicant argues that, under these
circumstances, the CDS’s decision to not order that the PER be rewritten is
unreasonable.
[34]
The second
criticism made by the applicant involves the letter dated November 1, 2003,
written by Major-General Leslie ordering his repatriation and recommending that
he not be redeployed on any missions. That letter is related to the grievance
challenging the LFQA HQ commander’s decision dated April 19, 2005, to not
redeploy the applicant.
[35]
The CDS
found that the applicant was not afforded procedural fairness when the decision
to not redeploy him was made because he was not given the opportunity to make
his submissions before that decision even though it had a significant impact on
the furthering of his career within the CF. The CDS subsequently noted that
everything pointed to the fact that the decision was motivated by the
repatriation letter signed on November 1, 2003, by Major-General Leslie. The
CDS indicated that he did not call into question the commander’s decision to
repatriate the applicant because of the accidental discharges of his firearm. He
also found that the recommendation to never permit the applicant to redeploy was
unreasonable. It noted that the decision was made without the commander further
explaining himself and without giving the applicant the chance to correct the
shortcomings. He also indicated that he found that the decision by the deputy
commander of the LFQA HQ was disproportionate and that nothing demonstrated
that the applicant would never be able to redeploy or use and maintain a weapon.
The CDS found that the decision to not permit him to redeploy was irrational
and disproportionate and that the applicant could be permitted to redeploy if
he respected the same eligibility and training standards as his comrades in arms.
[36]
As a remedy,
the CDS ordered that the letter by the deputy commander of the LFQA HQ dated
April 19, 2005, be withdrawn from his file. However, he refused to withdraw the
letter by Major‑General Leslie ordering his repatriation and recommending
that he not be redeployed. The CDS explained his decision as follows:
[translation]
The letter from the comd of TFK will
remain in the record since it explains the circumstances of your repatriation
and is an important archival record. Although I have already determined that
his recommendation to never permit you to redeploy was unreasonable since it
was not clear enough and did not give you a second chance, the fact remains
that he had the right to issue his opinion as the in‑theatre comd and
that it was only a non‑binding recommendation to the senior officials at
NDHQ in Ottawa.
[37]
The
applicant submits that it was unreasonable for the CDS to keep this letter, at
least in its current form, in his file. The applicant does not call into
question the decision by the commander ordering his repatriation; he
acknowledges that he had the authority to order his repatriation and that the
reasons that led him to make that decision were reasonable. However, he
challenges two parts of the repatriation letter: the assessment by Major-General
Leslie on his basic soldier skills and the recommendation that he never be permitted
to redeploy.
[38]
The
applicant rebuts the statement by the CDS that the existence of this letter is
inconsequential. First, he maintains that, if this letter is kept in his
personal file, it remains accessible to all of the chain of command and could
compromise his opportunities for advancement because it contains severe, excessive
comments about him. This letter contains harmful comments that, in his opinion,
had and could still have significant consequences for his career because it consists
of the professional opinion issued by one of the most senior officers in the
CF; it is therefore inevitable, in his opinion, that such comments would
influence any potential reader who would not necessarily have in his or her
possession the CDS’s decision stating that Major‑General Leslie’s comments
and recommendation are unreasonable. Therefore, the applicant argues that potential
superiors who read this letter will not have the opportunity to qualify it and
put the comments it contains into context.
[39]
The
applicant submits that he suffered significant harm from the fact that this
letter remains in his file, whereas it would have been very simple and
inconsequential for the CF to withdraw the letter or, at least, redact it to take
out the inappropriate comments and the recommendation that he not be redeployed.
As with the lack of a PER, the applicant also submits that the presence of this
letter, in its current form, will have a negative impact on his re-enrolment.
[40]
Finally,
the applicant criticizes the CDS for not acknowledging in his decision that the
treatment imposed on him constituted harassment. The applicant acknowledges that
he made no formal harassment complaint regarding all of the treatment he
received and the actions imposed on him, but he maintains that it would have
been inappropriate to proceed with that avenue of recourse. First, he indicates
that he had already filed a complaint against an officer and that, further to
filing this complaint, his situation had worsened and the actions taken against
him had intensified. He emphasized that the authors of the unfair and
unreasonable treatment he was subject to are all senior officers and that it
would have been unthinkable for him to file a complaint against each of them
without suffering serious consequences; he would have had to file the complaints
at a time when he had lost all credibility with the chain of command and he risked
having his complaints dismissed altogether or being released from the CF on
grounds of “administrative burden”. Furthermore, the filing of the complaints
would have halted the grievance process. The applicant adds that the harassment
evidence arose only when the grievances were upheld and the actions imposed on
him were set aside. Throughout the grievance process, the applicant raised the
unreasonable, disproportionate and unfair nature of the actions, but they were
only claims. The CDS’s decision confirmed the abusive and inappropriate nature
of the actions.
[41]
The
applicant also contends that, even if he did not file a formal harassment
complaint, he told the CDS that he had been the subject of harassment. The CDS also
acknowledged this in his decision and it is on that basis that he claimed
financial compensation and the imposition of administrative actions on the
authors of the actions that were imposed on him.
[42]
The applicant
submits that the CDS, considering his rank, position and the resources available
to him, should have recognized that all of the actions that were imposed on
him, in conjunction with the administrative errors, delays and breaches of procedural
fairness, amounted to harassment. He claims that it would have been reasonable
for anyone in the CDS’s position to recognize and condemn the harassment he had
suffered.
B. Position of the
respondent
[43]
The
respondent argues that the remedies ordered by the CDS are reasonable and fall
within his discretionary authority. He maintains that the applicant’s requests,
that is, that the PER be rewritten and that the letter dated March 1, 2003, be
withdrawn or redacted, would have also been possible remedies, but that it was
up to the CDS to choose the remedies he deemed the most appropriate. The actions
he ordered fall within the acceptable outcomes in respect of the evidence and
should not be reviewed. The respondent adds that it is clear from the CDS’s
decision that he understood and considered the applicant’s submissions and that
his reasons are clear and make it possible to understand the basis of his
decision.
[44]
With
respect to the criticism made regarding the demand for recognition that the
applicant was the subject of harassment, the respondent raises that the
applicant did not file a harassment complaint and that the grievances before
the CDS did not seek a declaration in that respect. The applicant’s harassment allegation
was part of his claim for monetary compensation and for the imposition of actions
on the officers who imposed disciplinary actions on him and the CDS’s decision,
in those respects, is not challenged by the applicant.
C. Discussion
[45]
First, it
should be specified that the treatment of the applicant after the incidents in Afghanistan
seem completely disproportionate, unfair and unreasonable to me. I believe,
upon reading the entire file, that the CDS correctly interpreted the situation
and that his decision to set aside all of the actions imposed on the applicant
was completely justified.
[46]
I also
understand the applicant’s frustration and am sensitive to the harm he claims to
have suffered because his PER was not rewritten and because the letter dated
March 1, 2003, by Major‑General Leslie remains, in its current form, in
his personal file. I would hope that the applicant’s fears in this respect are
unfounded and that any future superior would have access to the applicant’s
file in its entirety, including the CDS’s decision and this judgment.
[47]
The applicant
is basically criticizing the CDS for not going far enough with the remedies he
ordered. The submissions made by the applicant, however, have not convinced me
that the intervention of the Court is warranted.
[48]
I believe
that the remedies ordered by the CDS were reasonable and that his decision to
not order that the PER be rewritten or to have the letter dated March 1, 2003,
withdrawn or redacted fall within the range of possible acceptable outcomes in
respect of the evidence and the elements before him.
[49]
The CDS has
discretion when determining the merit of grievances. This discretion is especially
important when determining the remedies he deems appropriate under the
circumstances because of his in-depth knowledge of the military environment and
its operations. The Court must show deference to these decisions. It is clear
from the CDS’s decision that he properly understood and considered the
applicant’s requests and arguments and that his decision is intelligible and
well‑reasoned with respect to why he found it inappropriate to order that
the PER be rewritten and the repatriation letter be withdrawn. The reasons
raised by the CDS for not ordering the PER to be rewritten are not illogical
and rely reasonably on the evidence. It is true that the authors of the PER were
holding to their position and refused to modify their evaluation. It is also
correct that they did not recognize the value of the evaluation by Lieutenant-Colonel
Nayle. Regarding the decision to keep the entire repatriation letter in his file,
the CDS found that Major‑General Leslie’s recommendation was merely an
inconsequential opinion because he ordered the decision made on the basis of
this recommendation to be set aside. I cannot find that this reasoning falls
outside the range of possible, acceptable outcomes because the CDS’s statement
is technically correct. I am also sympathetic to the applicant’s arguments when
he maintains that this letter will be accessible to anyone who reads his file,
but this argument is insufficient to render the decision unreasonable in my
opinion.
[50]
I also
believe that it would also have been reasonable, and maybe preferable, for the
CDS to have allowed the applicant’s requests. However, it is the very nature of
the reasonableness standard to recognize that more than one solution to a
problem may be reasonable and unless the Court is convinced that the solution
or interpretation accepted by the administrative tribunal does not constitute
one of the possible outcomes which are defensible in respect of the facts and
law, the Court must not intervene to substitute its own assessment of the
evidence or its own solutions for those chosen by the administrative
decision-maker.
[51]
In Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, Justice Binnie,
writing for the majority, clearly indicated that reviewing courts cannot
substitute their own appreciation of the appropriate solution. He stated the
following:
59 Reasonableness
is a single standard that takes its colour from the context. One of the
objectives of Dunsmuir was to liberate judicial review courts from what
came to be seen as undue complexity and formalism. Where the reasonableness
standard applies, it requires deference. Reviewing courts cannot substitute
their own appreciation of the appropriate solution, but must rather determine
if the outcome falls within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, at para. 47).
There might be more than one reasonable outcome. However, as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome.
[52]
These
principles must apply in this case.
[53]
I will now
address the applicant’s third criticism of the CDS’s decision. The applicant
essentially criticizes the CDS for not taking the initiative to declare that
all of the treatment imposed on him constituted harassment. With respect, I
believe that this argument does not render the CDS’s decision unreasonable.
[54]
First, the
CDS did not hear a harassment grievance, but rather three grievances on
specific actions seeking specific remedies. None of the grievances sought a
declaration that the applicant was the subject of harassment. The CDS’s mandate
consisted of deciding the grievances before him and ruling on the specific
requests contained in the grievances. It is true that the applicant raised that
he was the subject of a harassment campaign, but this allegation was made in
the context of and in support of his monetary claim and of his request that
disciplinary actions be imposed on the authors of the actions that were imposed
on him. However, the CDS did not allow these claims and that part of his
decision is not the subject of this application for judicial review.
[55]
The CDS
acted as authority to decide the grievances submitted by the applicant. The applicant’s
criticism of the CDS is now more so related to his role as senior manager of
the CF than his role as adjudicator. The applicant wishes that the CDS had taken
the initiative to declare that he was the subject of harassment and to denounce
this situation. The CDS could have done so, but was not obligated to go that
far. He clearly denounced the unreasonableness of the actions imposed by the
respondent, but was not hearing a harassment grievance and was not obligated to
go further than what the applicant himself claimed in his grievances.
[56]
For all of
these reasons, I consider the CDS’s decision reasonable in all respects that
there is no basis for the Court to intervene.
[57]
Given the
particular circumstances of this case, there is no order as to costs.
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