Date: 20110323
Docket: T-883-10
Citation: 2011 FC 356
Ottawa, Ontario, March 23,
2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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CAPTAIN (N) JOHN FREDERICK SCHMIDT
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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]
On
July 29, 2008, the Applicant, Captain (N) John Frederick Schmidt, was permanently
removed as the Base Commander of CFB Borden and served with a recorded warning
by Major-General J. P. Y. D. Gosselin. This action was the result of an
incident in the Officer’s Mess on the evening of July 7, 2008 where Captain
Schmidt was reported to have acted inappropriately towards two junior female
officers. Captain Schmidt maintains and the Attorney General concedes that the
initial decision by Major-General Gosselin to remove him from command was tainted
by procedural unfairness. Captain Schmidt argues on this application for
judicial review that the subsequent determination of his grievance by the Chief
of Defence Staff (CDS) also removing him from his command was compromised by the
underlying procedural unfairness and should, therefore, be set aside.
Background
[2]
Captain
Schmidt was posted to CFB Borden as Base Commander on February 1, 2008. On
July 8 of that year he informed Major-General Gosselin, the Commander of the Canadian Defence Academy, that on the
previous evening he had reportedly behaved inappropriately towards two female
students from the Canadian Forces School of Administration and Logistics. He
acknowledged that he had been under the influence of alcohol and had little
recollection of what had taken place.
[3]
Major-General
Gosselin immediately appointed Brigadier-General D. Fraser to conduct an
investigation and to make recommendations about Captain Schmidt’s suitability
to continue as Base Commander. He asked for an interim report by July 18, 2008
and a final report by August 15, 2008.
[4]
Brigadier-General
Fraser’s interim report of July 16, 2008 disclosed that his investigation
involved interviews with 15 individuals including the two affected student
officers. The witnesses reported to Brigadier-General Fraser that on the night
in question Captain Schmidt appeared to be drunk. The two female complainants
claimed that Captain Schmidt had made unwanted advances including invitations
to come home with him. The students expressed shock, disappointment and
embarrassment over the incident. Captain Schmidt claimed to have little memory
of what had occurred.
[5]
Brigadier-General
Fraser’s interim report stated that a more detailed investigation was not
required and he characterized Captain Schmidt’s behaviour as harassment albeit
“isolated”. Nevertheless he recommended that Captain Schmidt be removed from
command for the following reasons:
- While Capt(N)
Schmidt is capable of command and has the continuing support of the senior
staff he has irrevocably damaged the trust with the junior officers at CFSAL
including affected students. Institutional credibility must be maintained in
the eyes of all parties - the senior staff, junior officers and outsiders. The
perspectives between the Borden senior staff and CFSAL junior officer
staff/students are diametrically opposed as to the issue about trust. In all of
this Capt(N) Schmidt is a decent and honest individual who is passionate about
what he is doing. He made a significant and apparently isolated mistake. To
maintain institutional credibility Capt(N) Schmidt must be seen to be held
accountable in the eyes of all parties.
[6]
Major-General
Gosselin did not wait for a final report from Brigadier-General Fraser.
Instead, on July 16, 2008 he informed Captain Schmidt of the results of the
interim investigation and the recommendation for his removal from command. On
July 21, 2008 Captain Schmidt was told that he could resign his command or be
formally removed. On July 31, 2008 Major-General Gosselin wrote to
Captain Schmidt outlining the basis for the decision to effect his removal as
Base Commander of CFB Borden. The letter stated:
1. This letter is to confirm the
discussions we have had between 16 and 29 July 2008, and provide in writing the
reasons for your removal of command on 29 July 2008.
2. While at the Base Borden
Officers’ Mess on the evening of 7 July 2008, and while under the influence of
alcohol, you inappropriately invited a junior female officer to come to your
home with you. Shortly after, you inappropriately put your arm around the waist
of a second junior officer and invited her as well. This conduct contravened
DAOD 5012-0 Harassment Prevention and Resolution (Ref B).
3. Considering this misconduct,
and the importance and authority of your position as both Commander CF Support
Training Group and Base Commander Borden, I have lost confidence in your
ability to effectively exercise the functions of command, and in consultation
with the Commander, Military Personnel Command, I have decided to remove you
from command effective 29 July 2008.
4. In making my decision, I have
relied on the investigation conducted by BGen David Fraser (Ref C), and
considered the factors that you brought forward to me in our discussions
between 16 July 2008, the day I advised you of my intent to remove you from
command, and our meeting on the morning of 29 July 2008. I have concluded that
the following factors preclude you from exercising effective command of both
CFSTG and CFB Borden:
a. professional
misconduct in harassing junior officers attending courses at one of the largest
military schools under your direct command;
b. personal conduct
which raises concerns about your ability to effectively lead personnel at CFSTG
and CFB Borden;
c. a serious error in
judgement in allowing yourself to be intoxicated to the point where you did not
extricate yourself from a potentially troubling situation;
d. a loss of
confidence in your ability to continue to perform your duties impartially,
especially in future administrative and disciplinary cases of a similar nature;
and
e. a permanent
severance of trust that is essential for a chain of command to be - effective.
5. While I greatly deplore the
events that took place on the evening of 7 July, and consider this incident
most unfortunate for all, I appreciate your forthrightness in reporting the
incident to me immediately after you were informed of the allegations, in
accepting responsibility for your actions, and in offering to resign from
command should it be determined you had acted inappropriately on that evening.
6. I thank you for your dedicated
work in the past seven months and your attempts to revitalize the formation and
the base. You will be assigned to a new position within the next few days.
[7]
On
October 31, 2008, Captain Schmidt launched a grievance from Major-General Gosselin’s
decision alleging an absence of procedural fairness, including the following
deficiencies:
(a) Notice of the
intention to make a decision should be given to the person whose career may be
affected.
This would include Annex A of ref D. It
should be noted that this was never provided nor any accompanying
documentation.
(b) The person whose
career may be affected should be sufficiently informed of the superior’s
concerns and/or the allegations against his interest to allow that person to
properly address the issues. This would normally include disclosure of the
grounds of concern as well as relevant information, which will be relied upon
in making the decision.
Ref A clearly indicates that MGen
Gosselin relied upon the informal report of BGen Fraser. At no time has this
report been disclosed or provided to me so that I could properly respond to
MGen Gosselin or, indeed, call any witnesses who may have been available. I do
not even know the specific allegations of these unknown officers.
(c) The person whose
career may be affected should be given a reasonable time to prepare a response
and an opportunity to make representations to his superior.
At Ref D, para 6, the clear and concise
instruction with respect to procedural fairness is set out in detail. As well,
para 6 dictates that. . . “As a matter of policy, removal from command should,
except in exceptional circumstances, be temporary, with a decision to continue
or cease that removal coming at a later date when all of the information is
known and full procedural fairness can be accommodated.” This was not done -
there were no exigent circumstances that would have allowed for the hasty and
wrongful decision.
[8]
In
the ordinary course Captain Schmidt’s grievance would have initially been considered
by his commanding officer. That option was not available and the grievance was
submitted to the Canadian Forces Grievance Authority (Grievance Authority) for
review and recommendation to the CDS for final determination.
[9]
On
August 20, 2009 the complete grievance file was disclosed to Captain Schmidt
through his legal counsel, David Bright Q.C. At that time, Captain Schmidt was
invited to submit his comments and copies of pertinent documents in support of
his grievance. He was also told that earlier breaches of procedural fairness
may be amenable to cure by the Grievance Authority citing as authority Parisé
v Canada, 265 NR 117, 190 FTR 240 (FCA).
[10]
On
October 9, 2009 Mr. Bright responded in a very limited way to the substance of
the allegations against Captain Schmidt. He acknowledged that Captain Schmidt
was under the influence of alcohol at the time and had little recollection of
the events. Mr. Bright’s letter characterized the focus of the grievance
in the following way:
In any event, the thrust of the Grievance
is not with respect to whether or not Captain(N) Schmidt accepted
responsibility for his actions (there must surely be an assumption that any
officer holding the Queen’s Commission would so do) but rather the total lack
of administrative fairness in assessing a significant punishment against him.
[11]
On
November 20, 2009 the Grievance Authority disclosed its grievance synopsis to
Captain Schmidt. That document stated that Captain Schmidt had not
contested the substantive findings of Brigadier-General Fraser and recommended,
subject to Captain Schmidt’s further representations, that the grievance be
denied. Mr. Bright responded to this report on January 4, 2010. Although
Mr. Bright disputed the suggestion that Captain Schmidt accepted
Brigadier-General Fraser’s findings, the only points of substance he raised involved
an issue of probable “witness contamination” and a suggestion that “these
complainants may have made similar accusations against other senior officers in
the past”. Neither of these points was supported by any evidence. The
remaining concerns had to do with Major-General Gosselin’s handling of the
matter including a question about the appropriateness of the penalties he had
imposed.
[12]
On
April 16, 2010 the CDS denied Captain Schmidt’s grievance. Although the CDS
set aside Major-General Gosselin’s decision on the basis of fairness concerns,
he nevertheless went on to hold that the removal of Captain Schmidt from
command and the placement of a recorded warning on his personnel file were
justified. It is from this decision that this application arises.
Issue
[13]
Were
the acknowledged procedural lapses in the process leading to Major-General Gosselin’s
initial decision to remove Captain Schmidt from his command remedied or
overcome by the subsequent grievance review conducted by the CDS?
Analysis
[14]
The
issue raised on this application is one of procedural fairness which requires a
review on the basis of correctness: see Smith v Canada (Chief of
Defence Staff), 2010 FC 321, 363 FTR 186 at para 37.
[15]
The
parties to this application agree that breaches of procedural fairness
surrounding an administrative decision may, in some cases, be overcome by a
fair process of appellate review. They disagree as to whether the Canadian
Forces’ (CF) grievance procedure employed here met the requisite standard.
[16]
The
question of whether an administrative appeal may cure procedural lapses or
unfairness arising in a subordinate adjudication has been judicially considered
on a number of occasions. A recent decision of the British Columbia Court
Appeal in Taiga Works Wilderness Equipment Ltd. v British Columbia (Director
of Employment Standards), 2010 BCCA 97, 3 BCLR (5th) 103 offers a thorough
review of a previous authorities on point, which it summarized as follows:
36 The above review of the
jurisprudence demonstrates that Cardinal does not stand for the broad
proposition put forward by the employer that an appellate tribunal has no power
to cure breaches of the rules of natural justice and procedural fairness. It is
apparent from Supermarchés Jean Labrecque Inc. and Mobil Oil that
the Supreme Court of Canada accepted that Harelkin (and King) and
Cardinal can stand side by side. The fact that the Supreme Court of
Canada mentioned both Harelkin and Cardinal with approval means
that Cardinal cannot be taken to have overruled the proposition
established by Harelkin (and King) that a breach of the rules of
natural justice or procedural fairness can be cured by an appellate tribunal in
appropriate circumstances.
37 I think it is fair to say that Cardinal
stands for the proposition that a breach of the rules of natural justice or
procedural fairness cannot be overlooked on the basis that the reviewing court
or appellate tribunal is of the view the result would have been the same had no
breach occurred. As demonstrated by the post-Cardinal authorities to
which I have referred, Harelkin and King continue to stand for
the proposition that appellate tribunals can, in appropriate circumstances,
cure breaches of natural justice or procedural fairness by an underlying
tribunal. The question then becomes how one should determine whether such
breaches have been properly cured.
38 As did Huddart J.A. in International
Union of Operating Engineers and Berger J.A. in Stewart, I prefer
the approach advocated by de Smith, Woolf and Jowell in Judicial Review of
Administrative Action. One should review the proceedings before the initial
tribunal and the appellate tribunal, and determine whether the procedure as a
whole satisfies the requirements of fairness. One should consider all of the
circumstances, including the factors listed by de Smith, Woolf and Jowell.
[17]
The
five factors identified by de Smith, Woolf and Jowell, Judicial Review of
Administrative Action, 5th ed. (London: Sweet & Maxwell,
1995) and noted above are the following:
(a) the
gravity of the error committed at first instance;
(b) the
likelihood that the prejudicial effects of the error may also have permeated
the rehearing;
(c) the
seriousness of the consequence for the individual;
(d) the
width of the powers of the appellate body; and
(e) whether
the appellate decision is reached only on the basis of the material before the
original decision-maker or by way of a rehearing de novo.
It seems to me that, with the exception of
item (c) above, the underlying concern is whether the subsequent process for
review affords to the affected party a full and independent consideration of
the case without being contaminated by the unfairness of what occurred below.
Accordingly, where the authority of an appellate body is somehow constrained or
where the burden shifts to the aggrieved party to obtain appellate relief, it
is unlikely that a previous grave procedural defect will be overcome. In such
a situation nothing less than a fair first stage consideration will usually be
required. Conversely, where there is a right to a full and fair de novo
review with no narrowing of the available relief, many procedural deficiencies
affecting a first stage decision will be cured.
Were the Acknowledged Procedural
Lapses in the Process Leading to Major-General Gosselin’s Initial Decision to Remove
Captain Schmidt From His Command Remedied or Overcome by the Subsequent
Grievance Review Conducted by the CDS?
[18]
Mr. Bright
argues that the grievance process adopted by the CDS did not afford the
necessary degree of independent and open assessment of the evidence and
arguments to be considered a true de novo hearing. He asserts that the
record considered by the CDS was effectively the same record compiled by the
first stage decision-maker and that this compromised the outcome of the
grievance. This is not an argument that I am able to accept.
[19]
It
is clear from the record that the CDS considered his grievance authority to be de
novo and he communicated that understanding to Captain Schmidt. The CDS
took this view on the strength of the Federal Court of Appeal decision in Parisé,
above. Parisé was a case involving an allegation against a CF member of
cheating on an examination. Following an internal review, the member was
expelled from the training course and returned to his unit. As in this case,
the initial decision was made without appropriate regard for procedural
fairness. The member brought a grievance but was unsuccessful in obtaining
redress. On judicial review the decision was set aside on fairness grounds.
On appeal, however, the grievance decision was reinstated. Notwithstanding the
procedural flaws that were evident around the initial decision, the Federal
Court of Appeal noted that full compliance with the rules of procedural
fairness had been observed throughout the three subsequent grievance stages.
It is at least implicit in this decision that the Court found that the CF
grievance process was sufficiently robust and independent that it could - and
did in that case - remedy any procedural defects that had arisen earlier.
[20]
From
my own review of the CF grievance procedure, I am satisfied that it does afford
to a grievor recourse to a true de novo assessment of the case. I am
also satisfied that in this case the CDS did conduct a de novo review of
Captain Schmidt’s grievance and that the process was not compromised in any way
by any of the procedural deficiencies that were identified in the underlying
process.
[21]
The
right of an officer or non-commissioned member to grieve any decision, act or
omission in the administration of the affairs of the CF is created by s 29 of
the National Defence Act, RS, 1985, c N-5 (Act). There are a few stated
limitations to the right to grieve but the scope for recourse is a large one. Subsection
29(5) of the Act specifically recognizes that “any error discovered as a result
of an investigation of a grievance may be corrected”. This provision affords
the grievance authority the unfettered ability to correct errors made in any
subordinate decision-making process subject to a grievance.
[22]
The
above statutory provisions have been supplemented by Administrative Order CFAO
19-32 (Redress of Grievance) which provides for an investigation when one is
necessary to properly assess the merits of a grievance. Article 13 of that
Order stipulates that the member seeking redress must be provided with full
disclosure of the material to be reviewed by the redress authority. The member
is then given the right of response to the record produced (Article 21) which
may cause a further investigation and additional disclosure (Article 25).
These provisions clearly contemplate the initiation of a process for grievance
adjudication that is separate from the process followed at the initial decision-making
stage and for the construction of a different evidentiary record. The CDS also
enjoys an unfettered remedial authority under ss 29(5) of the Act.
[23]
In
his decision, the CDS accepted that the initial decision taken by Major-General
Gosselin was compromised by procedural lapses and he set that decision aside.
He then proceeded to review the evidentiary record concerning the substance of
the allegations against Captain Schmidt and reached the following conclusions:
Removal from Command. In reviewing your case anew,
I must first determine, based on the information on file surrounding the events
of 7 July 2008 and the conclusion of the administrative investigation conducted
by Brigadier-GeneraI Fraser, if removing you from command was appropriate and
reasonable.
It is normally a loss of confidence in
the person’s ability to effectively exercise command that results in their
removal from command. There is no rule to determine how much latitude will be
given to a subordinate or how tolerant a superior should be. Command is a
privilege and commanding officers (COs) are entrusted with immense powers and
obligations in their duties.
One’s moral ability to command must be
determined on a case-by-case issue. No universal template can be applied.
Every situation must be reviewed for its own merit and each decision must be
principled and reasoned. Depending on the situation, administrative measures
such as recorded warnings or counselling and probations may prove to be more
appropriate. In other situations, removal of command or, in some rare cases,
release may be the only alternative.
Here is an extract of the CDS guidance to
CO:
… Every decision that you take as a CO
that involves other people will have an ethical dimension to it. Almost every
decision impacts other people, so the ethical dimension of the CO’s role is
pervasive. As CO you have been entrusted with the leadership of some of Canada’s finest men and women. They
deserve leadership with integrity. Integrity involves carrying out your
responsibilities at all times by showing respect for the human dignity of
people. It means treating them with fairness.
I note from both your representations
that you never once contested the specific content of the administrative
investigation. Your contentions were limited to the breach in procedural fairness
and the fact that some of the witnesses interviewed were also under the
influence of alcohol at the time of the events on 7 July 2008 and that their
statements should have been taken under oath.
I do not agree that, because the
witnesses’ statements were not taken under oath, they should not be given
consideration. There is no provision in the Harassment Investigator Manual to
take witness statement under oath and that alcohol consumption invalidates such
statement. You also contend that witness contamination may have occurred and
that the complainants may have made similar accusations against senior officers
in the past. Since these contentions are not supported by facts, I will not
consider them.
By not challenging the specific
statements within the administrative investigation, I conclude that, on a
balance of probability, your conduct on the evening of 7 July 2008, as laid out
in the investigation report, did occur. More specifically, I find that you
consumed alcohol to the point where you were no longer able to apply correct
judgement and acted inappropriately towards female junior officers. By your
conduct on that evening, you also allowed yourself to be in a situation where,
in front of subordinates, your actions brought discredit to your rank, your
position and the CF. The fact that formal harassment complaints were never laid
is irrelevant.
Consequently, I find that your
unprofessional conduct at the Officer’s Mess on 7 July 2008 breached the trust
bestowed upon you by Her Majesty the Queen and that the reasons provided by
MGen Gosselin in the removal from command letter were sound, accurate and
justified. Consequently, based on the information on file, I agree with the
original decision to remove you from command and direct that this decision be
permanent. I also find that reinstating you in a command position of your choice
at this time would not be in the best interests of the CF.
[Footnotes omitted]
[24]
It
is evident from these reasons that the CDS understood the need to come to an
independent conclusion concerning Captain Schmidt’s fitness for command on the
basis of the record before him.
[25]
I
agree with Ms. McManus that the investigatory record considered by the CDS
was different than the record that had been considered by Major-General Gosselin.
Among other things, it included further submissions from Major-General Gosselin,
from Captain Schmidt and from Brigadier-General Fraser.
[26]
There
is no doubt that with respect to the substance of the allegations against
Captain Schmidt, the evidence before Major-General Gosselin did not materially
differ from that put to the CDS; but this does not support an argument that the
admitted unfairness at the time of the initial decision somehow permeated the
grievance process. Ms. McManus is correct that Captain Schmidt was
repeatedly extended the opportunity to add to the grievance record on matters
of substance and each time, he made a decision not to do so. It was equally
open to Captain Schmidt to ask that the CDS supplement the grievance record by expanding
the scope of his investigation but no such request was made. Captain Schmidt
effectively chose to limit his intervention to complaints about the unfairness
of the process below and argued, as a point of law, that it was “impossible…to
put the genie back in the bottle”. To the extent that he touched at all on
matters of substance it was, as the CDS observed, limited to unsubstantiated or
speculative concerns.
[27]
Captain
Schmidt argues that the CDS ought to have bifurcated the grievance process to
deal first with the issue of fairness and then to have invited further
submissions and evidence on matters of substance. The problem with this
argument is that Captain Schmidt did not ask the CDS to adopt such an approach
and the CDS made it abundantly clear that he intended to deal with both issues
at once. Nothing prevented Captain Schmidt from taking issue with any of the
evidence that had been marshalled by the CDS; it is not open to him to complain
later that the unfairness that was evident early on somehow compromised his
right to a fair hearing before the CDS.
[28]
I
agree with Ms. McManus that this situation is indistinguishable from those
cases where a party fails to exhaust internal opportunities for recourse and
instead complains on judicial review that a duty of fairness was breached in an
initial adjudication: see Lewis v Canada Employment and Immigration
Commission, [1986] 1 FC 70, 60 NR 14 (FCA). Captain Schmidt cannot now
complain about the inadequacy of the substantive grievance record before the
CDS when he failed to make any serious effort to shape it. As the CDS
observed, Captain Schmidt’s silence on the merits of the allegations against
him can best be explained on the basis that he had nothing to say beyond the generalized
and somewhat culpable admissions he had already made. In this context the
concerns expressed in argument about delay and the cogency of evidence are
hypothetical and, in any event, should have been made first to the CDS.
The Gravity of the Errors
Below and the Seriousness of the Implications of the Decision for Captain
Schmidt.
[29]
With
respect to the concern about the gravity of the error made by Major-General
Gosselin there can be no doubt that Captain Schmidt was denied procedural
fairness. Indeed, as the CDS noted, this decision was made before the
investigation was complete and without full disclosure to Captain Schmidt. This
is tempered somewhat by the fact that Captain Schmidt had been given
considerable information about the events which led to his removal from command
and, in fact, he had self-reported the matter to his commanding officer.
Captain Schmidt was also afforded the opportunity to respond to the allegations
made against him by the aggrieved parties but he was largely unable to do so
because of his admitted consumption of alcohol at the time in question.
[30]
There
can also be no doubt that Major-General Gosselin’s decision carried serious
negative implications for Captain Schmidt. He was removed from an important
command position and received a written reprimand. On the other hand, the
process that was adopted by the CF was remedial in nature and not
disciplinary. Had the disciplinary process been invoked, the potential for
demotion or full release from the CF would have arisen. In the result, Captain Schmidt
has been able to continue his career in the CF without any loss in rank.
[31]
In
my view these considerations are not sufficiently compelling to justify a
finding on judicial review that Captain Schmidt is entitled to a fresh first
level decision. He has had the benefit of a full, fair and independent de
novo review of the case by the CDS that is sufficient in these
circumstances to remedy the deficiencies that arose at the time of
Major-General Gosselin’s decision.
[32]
Notwithstanding
the capable submissions by Mr. Bright, this application must be dismissed with
costs payable by the Applicant to the Respondent in the amount of $2,500.00
inclusive of disbursements.
[33]
Counsel
for the Attorney General points out correctly that the only proper Respondent
to this application is the Attorney General of Canada and the style of cause is
amended accordingly.
JUDGMENT
THIS COURT’S JUDGMENT
is that
application for judicial review is dismissed with
costs payable by the Applicant to the Respondent in the amount of $2,500.00.
THIS COURT’S
FURTHER JUDGMENT is that the style of cause in this proceeding shall be
amended to substitute the Attorney General of Canada for the Respondents as previously
named.
“ R. L. Barnes ”
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