Date: 20091130
Docket: T-1564-08
Citation: 2009 FC 1217
Ottawa, Ontario, November 30,
2009
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
ANTHONY
MOODIE
Applicant
and
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
AS REPRESENTED BY THE MINISTER
OF NATIONAL
DEFENCE
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review in respect of a decision of the Chief of
Defence Staff (CDS) dated August 7, 2008, where the CDS did not grant the redress
sought by the Applicant. The CDS determined that the Major who issued a Verbal
Warning to the Applicant had authority to do so and that the Major did not
abuse his authority when he issued the Verbal Warning, recalled the Applicant
back from an attached posting, cancelled the Applicant’s annual leave, did not
support a medical claim and sought advice from the local Assistant Judge
Advocate General regarding issues involving the Applicant.
I. Background
[2]
The
Applicant served in the Canadian Armed Forces between 1995 and 2005. At the
time of his release from service, he was ranked as a second Lieutenant. In 2002,
he enrolled in the Regular Forces as a Land Force Logistics Officer and was
posted on a permanent basis to the Canadian Forces School of Administration and
Logistics (CFSAL). His Commanding Officer (CO) was Major Lemelin (the Major).
[3]
The
Applicant was attach-posted to the 32 Canadian Brigade Group Headquarters (32
CBG HQ) to gain training as a Land Logistics Officer. The attach-posting
commenced in March 2003. On June 2, 2004, the Applicant was required to return
back to CFSAL. On June 7, 2004, he was posted at Post Recruit Education
Training Centre (PRETC) at Canadian Forces Base Borden (CFB Borden).
[4]
In
September 2003, the Applicant was informed he would be required to attend the
Common Army Phase (CAP) training set for May 31, 2004, in Gagetown. On May 3,
2004, the Applicant requested and was granted leave effective for June 7, 2004.
No explanation was given by either party as to why this leave was requested or
why it was granted if the Applicant was scheduled to attend the CAP program at
this time. On May 28, 2004, the Applicant saw a Medical Officer and was asked
to return to the clinic on May 31, 2004, the day he was scheduled to commence
his CAP. The Applicant informed the Chief Clerk, a Sergeant at 32 CBG HQ, that
the Applicant would not be attending the CAP course at Gagetown. On May 31,
2004, the Applicant went for the follow up appointment with the Medical Officer
who referred the Applicant to a specialist and placed him on sick leave for a
period of two weeks.
[5]
On
June 1, 2004, 32 CBG HQ learned that the Applicant had been placed on sick
leave and had not attended the CAP. On June 4, 2004, the Applicant requested that
the Medical Officer cancel his sick leave. The sick leave was cancelled and the
Applicant was advised by his chain of command that he would be posted at PRETC
at CFB Borden.
[6]
On
June 29, 2004, the Applicant was given a Verbal Warning (VW) by the Major. As
set out in a written record of the VW, it was issued because the Applicant had
shown improper judgment in that he failed to advise his chain of command of his
intentions with regard to attending his CAP.
[7]
On
September 30, 2004, the Applicant submitted an application for Redress and
Grievance pursuant to section 29 of the National Defence Act, R.S. 1985,
C. N-5 (NDA). In this application for Redress and Grievance, the Applicant
stated that the Major had acted contrary to existing guidelines, that the
Major’s actions constituted an abuse of authority, that the Major had no
administrative control over him during the relevant period of time, and that
the VW should be rescinded.
A. The
Legislative Scheme
[8]
The
Queen’s Regulations and Orders for the Canadian Forces (QR&O) sets
out the command and reporting structure in the Canadian Armed Forces. Under article
3.20, command is exercised by the senior officer present. Article 19.015
provides that an officer shall obey lawful commands and orders of a superior
officer as defined in article 1.02. Articles 4.01 and 4.02 provide that an
officer is responsible to their immediate superior for the proper and efficient
performance of their duties.
[9]
The
Canadian Forces Administrative Order (CFAO) 26-07, sets out the
administrative measures designed to raise inadequate performance or conduct to an
acceptable standard. The CFAO sets out provisions for Recorded Warnings
(RW) and Counselling and Probation (C&P), and these are to be used as the
second last attempt to salvage a member's career. While the CFAO does not
directly set out a provision for the issuance of VW, they do state that a RW
should not be issued unless the member has been verbally warned and given
guidance on the deficiency.
[10]
A
member of the Canadian Armed Forces may be attach-posted to perform a duty
outside their normal unit for a period normally less than one year. As set out
in chapter 7 of the Administrative Procedural Manual, A-PM-245, an
individual on attached-posting continues to fill their position at their place
of permanent duty with their parent unit.
[11]
Section
29 of the NDA sets out the grievance procedure within the Canadian Armed
Forces. When an officer had been aggrieved by a decision, act or omission in
the administration of the affairs of the Canadian Forces, they have the right
to submit, under certain conditions, a grievance in the manner and in
accordance with the prescribed regulations.
[12]
This
grievance process can be summarized as follows:
(a) Within
six months of the day the member knew or ought to have known about the injustice,
the grievor must submit the grievance to their CO;
(b) Upon
receipt, the CO must determine if they could act as the Initial Authority in
the matter. In the affirmative, the Initial Authority has 60 days to consider
and determine the grievance, ensuring that procedural fairness principles are
respected;
(c) If
the CO cannot act as the Initial Authority, the CO has 10 days to forward the
grievance to the appropriate Initial Authority, who in turn has 60 days to
consider and determine the grievance, also ensuring that procedural fairness
principles are respected;
(d) Upon
receiving the Initial Authority decision, the Applicant has 90 days from
receipt to elect to have the grievance forwarded to the CDS, the Final
Authority for the Canadian Armed Forces grievance process;
(e) In
this case, as the matter grieved is abuse of authority, the CDS is obligated to
refer the grievance to the Canadian Forces Grievance Board (CFGB) in accordance
with the QR&O article 7.12 for review;
(f) The
CDS is then precluding from delegating their powers, duties and functions as a
Final Authority and must personally consider and determine the grievance;
(g) The
CDS is not bound by the CFGB’s findings; and
(h) The
CDS decision is final and bindings and not subject to appeal or review by any
court, except for judicial review under the Federal Court Act, R.S.C.
1985, c.F-7.
B. The
Decision
[13]
Following
the grievance process as set out above, the Applicant's grievance had been
considered prior to the CDS decision.
[14]
The
Initial Authority denied the Applicant’s Redress and Grievance on February 17,
2005. The Initial Authority determined that the VW was warranted and given in
accordance with the established administrative process. The Initial Authority
stated that the VW was warranted as the Applicant had not contacted the
CFSAL nor his chain of command on the afternoon of May 28, 2004, with
regard to attending his CAP and that informing the Chief Clerk, a subordinate,
was unacceptable. The Initial Authority explained that there was no abuse of
authority as CFSAL was the Applicant’s parent unit and retained responsibility
for his career administration during his attach-posting.
[15]
Not
satisfied with this decision, the Applicant referred his grievance to the CFGB.
On January 29, 2007, the CFGB upheld the decision of the Initial Authority and
affirmed that the issuance of the VW was reasonable. The CFGB found that the
Major had the authority to issue the VW as the Applicant remained part of the
CBSAL. The CFGB did find that while the VW was warranted, it should not have
been issued in the format of a RW. However, this did not disturb their
recommendation that the Chief of Staff deny the grievance.
[16]
Once
it received the file in the normal course, the Canadian Forces Grievance
Authority contacted the Applicant to let him know that the file was being
forwarded for determination by the CDS and asked if he had any additional
information. The Applicant asked if the file included a “tape recording” that
he felt was very relevant. The Officer at the Grievance Authority who was in
charge of the file informed the Applicant that there was no tape recording, but
if the Applicant forwarded the tape it would be included in the material
considered by the CDS. The Applicant emailed the Officer and stated he was under
no obligation to provide the tape and refused to do so.
[17]
The
CDS rendered his decision on August 7, 2008. The CDS upheld the decision of the
Initial Authority and concurred with the reasons of the CFGB. In the decision,
the CDS referred to the fact that the Applicant had been given an opportunity
to provide the tape recorded message and refused to do so.
II. Standard
of Review
[18]
The
decision of the CDS will be reviewed under a standard of reasonableness (see Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190). I come to this conclusion after considering
the following: the fact that decisions of the CDS are final and binding,
except for judicial review under the Federal Courts Act, R.S.C. 1985, c. F-7;
that the CDS is charged with control and administration of the Canadian Forces
and is interpreting its own statute; that the statutory scheme provided the CDS
with discretionary power in his determination of such grievances, and that the
issues to be addressed are predominantly those of fact or mixed fact and law.
[19]
Issues
of procedural fairness will be reviewed on a standard of correctness (see Sketchley
v. Canada (Attorney
General),
2005 FCA 404, 2630 D.L.R. (4th) 113).
III. Issues
[20]
The
issues raised by the Applicant can be set out as such:
A. The
Alleged Breach of Procedural Fairness
[21]
The
Applicant alleges that the Respondent breached procedural fairness as the Major
did not have the authority to issue the VW as an application was pending in the
Federal Court at the relevant time. He also alleges the CFGB breached
procedural fairness when the taped message was not part of the evidence
considered.
[22]
Under
article 7.16 of the QR&O, grievances are suspended if a claim is brought by
the grievor under an Act of Parliament. In this case, the Applicant had an
action pending in the Federal Court (Court File No. T-1248-07). This action was
struck on May 20, 2008. No Appeal was filed in the requisite time period. On July
25, 2008, the Applicant made an application to the Federal Court to extend the
time to file a Notice of Motion to Appeal the decision striking out his action.
The CDS rendered his decision on August 7, 2008. The Motion to extend the
time was allowed on August 26, 2008. Though the timing of events is
worth noting, at the time of the decision by the CDS the Applicant did not have
an action or claim in the Federal Court. There was no error.
[23]
In
his email of May 27, 2007, the Officer at the Grievance Authority provided the
Applicant with an opportunity to provide the allegedly missing tape recording
and the Applicant was warned that if the tape was not provided by a specified
date that the Applicant’s file would be considered and determined by the Final
Authority without it. The Applicant refused and the file was considered without
the tape recording. There was no error of procedural fairness on the part of
the Respondent.
[24]
I
note that the Applicant has provided an allegedly “certified” transcription of
the tape recording for this hearing. As it was not before the CDS at the time
of the decision, it will not be considered (see PPSC Enterprises Ltd. v.
Minister of National Revenue, 2007 FC 784, [2007] F.C.J. No. 1031 at
paragraph 16; 334156 Alberta Ltd. v. Minister of National Revenue, 2006
FC 1133, 300 F.T.R. 74 at paragraph 16).
B. Attach-postings
and Verbal Warnings
[25]
The
Applicant argues that the Major abused his authority as a senior officer when
he issued the VW. When a member of the Canadian Armed Forces is attach-posted
they are away from their parent unit for a temporary period of time, but continue
to fill their position at the parent unit (see article 1.02 (b) and (c) of the
QR&O and the Administrative Procedural Manual, above). Therefore,
the parent unit still retains control over the member.
[26]
A
VW is considered to be the first step in the line of progressive discipline (Forster
v. MacDonald, 108 D.L.R. (4th) 690, [1994] 3 W.W.R. 364 (ABQB)). While
there is no regulation or policy that provides who can issue a VW, there is
with regard to who can administer the more stringent punishments of Recorder
Warnings and Counselling and Probation. Under the Canadian Forces
Administrative Order 26-17, the RW can be issued by a member’s supervisor,
commanding officer or higher authority and a C&P by a commanding officer or
higher authority. Based on the fact that a Commanding Officer can issue the
more severe disciplines of RW and C&P, it follows that the commanding officer
is able to issue a VW.
[27]
The
CFGB held, and the CDS concurred, that the VW was warranted as the Applicant
had not advised any of his superiors that he would not be arriving in Gagetown
for CAP training as required and that his explanation was deficient. However, the
CDS also concurred with the CFGB that the VW should have been issued in a
simpler format. The CFGB found that the VW had not been placed on the
Applicant’s file and there was no evidence that it had an adverse effect on his
career.
[28]
In
this case, the Major was ranked as a higher authority to the Applicant in the
Applicant’s parent unit. It was reasonable for the CDS to find that the Major
had acted within his authority when he issued the VW, despite the fact that the
format of the VW could have been simplified.
[29]
In
the decision of August 7, 2007, the CDS concurred with the findings of the CFGB
that there was no abuse of authority when the Major refused to support the
Applicant’s medical claim, recalled the Applicant from his annual leave, and
sought advice from the local Assistant Judge Advocate General regarding issues
to which the Applicant was involved. This was reasonable.
C. Other
Administrative Issues
[30]
The
CFGB found that there was no evidence that the Major had delayed or obstructed
the Applicant’s medical claim, that the Major was regaining proper
administrative control over the Applicant in cancelling his annual leave, and
that it was reasonable for the Major to take advantage of having a legal
officer in each region to provide legal advice. In addition, the CFGB found
that the Major did not abuse his authority when he recalled the Applicant as
the Major was taking the necessary steps to gain administrative control over
the Applicant based on the situation and time constraints. It was reasonable
for the CDS to concur with these findings.
[31]
The
decision of the CDS was reasonable in light of the relevant legislative scheme
and based on the record properly before him. There were no breaches of
procedural fairness. There is no basis for this Court to interfere with the
decision.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. this
application for judicial review is dismissed; and
2. there is no Order as to costs.
“ D.
G. Near ”
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