Date: 20110530
Docket: T-1310-10
Citation: 2011 FC 600
Ottawa, Ontario, this 30th day of May
2011
Present: The Honourable Mr. Justice
Pinard
BETWEEN:
MASTER WARRANT OFFICER LINDA
L. MEGGESON
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of the Chief of the
Defence Staff (“CDS”), brought pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, by Master Warrant Officer (“MWO”) Linda L.
Meggeson (the “applicant”). The decision was in respect of an application for a
redress of grievance submitted by the applicant pursuant to section 29 of the National
Defence Act, R.S.C. 1985, c. N-5.
* * * * * * *
*
[2]
The applicant
has been a serving member of the Canadian Forces (“CF”) Regular Force since
October 13, 1977. In July 2006, she was serving as MWO on a one-year tour of
duty as the Vehicle Fleet Management Coordinator of the Multinational Force and
Observers (“MFO”) in Egypt under Operation
Calumet. There were 28 CF members serving in the MFO, who were designated as
Task Force El Gorah (“TFEG”) by Canadian Expeditionary Force Command (“CEFCOM”),
who has overall command of the mission. The applicant was assigned secondary
duties as the Contingent Sergeant Major.
[3]
On
October 5, 2006, the Commander of TFEG, Colonel P.G. Abbott, ordered the
applicant’s immediate repatriation to Canada. In a brief interview with the applicant prior
to her departure, Col. Abbott said that he had a “dysfunctional command
team”. The applicant alleges that she was given no prior warning or expression
of dissatisfaction with her performance and no specifics as to why she was
being repatriated.
[4]
The
applicant submitted an application for redress of grievance through her chain
of command to the Director General Canadian Forces Grievance Authority (“DGCFGA”)
on May 23, 2007. DGCFGA confirmed receipt of the application on January 8, 2008
and forwarded the file to the Canadian Forces Grievance Board (“CFGB”) as a
mandatory referral on January 10. The CFGB requested the applicant’s consent to
access her personnel and medical records, which she granted. The applicant
submitted supplementary documentation as requested on May 11, 2009. On
September 20, 2009, the applicant submitted comments and additional
documentation.
[5]
The
CFGB issued its findings and recommendations on December 1, 2009, and provided
the applicant with the opportunity to provide comments and other pertinent
documents to DGCFGA for further consideration by the Final Authority at CDS;
the applicant submitted her comments on January 9, 2010.
[6]
The
CDS decision was issued on June 21, 2010, and received by the applicant on July
15, 2010. The decision partially grants the application for redress of
grievance.
[7]
Since
her repatriation, the applicant has developed a chronic medical condition. On
July 22, 2009, the CF assigned the applicant Medical Employment Limitations (“MEL”)
which would normally disqualify the applicant from an operational deployment.
The applicant states that upon receiving the CDS decision she sought
confirmation that her MEL would not preclude her from the CDS remedy of another
deployment, but to date the DGCFGA has not responded to the applicant’s
request, nor has she been offered another deployment.
* * * * * * * *
[8]
The
CDS noted that the applicant’s grievance alleged that her repatriation was
unwarranted and carried out in an inappropriate manner, that the abruptness of
her repatriation resulted in relocation difficulties, that her 2006 Theatre
Personnel Evaluation Report (“PER”) did not accurately reflect her
accomplishments, and that the actions of one of her superiors may have
constituted a possible abuse of authority.
[9]
The
CDS noted that repatriation can have serious career repercussions and such
action should only be taken after procedural fairness has been afforded. The
CDS found that the applicant was not formally advised of her alleged
shortcomings, was not provided with the opportunity to overcome them, and was not
afforded procedural fairness in the repatriation decision. She was not given a
reasonable opportunity to present her response to the Task Force Commander’s
stated concerns, and was not given an opportunity to make representations to
the decision maker (CEFCOM). Col. Abbott did not have the authority to
unilaterally repatriate the applicant. The CDS directed that the applicant be
considered for another deployment opportunity appropriate to her qualifications
and experience when one arises. However, the CDS found that the applicant was
not entitled to the requested deployment-related allowances for lost pay for
the nine months that she was not in Operation Calumet as anticipated. These
entitlements were designed to compensate for the loss of amenities while on
deployment, and it was not appropriate to extend them to those not actually
subjected to in-theatre privations. The CDS found that it did not have the
authority to provide the applicant with compensation for services not rendered
to the CF.
[10]
The
CDS found that the PER was unfair, biased and contained inaccurate information,
and found that it should be expunged from the applicant’s record. The
applicant’s Personnel Development Review (“PDR”) should have addressed any
perceived shortcomings in her performance; it did not do so. The PER was also
given to the applicant after she had left the theatre, giving her no
opportunity to comment on it. This provided a sufficient appearance of bias.
The CDS found that the applicant’s career manager had stated that she was
already merit-listed for the 2007 promotion year and the adjustment caused by
the disregarded PER would make no difference to her promotion potential. There
was no need to convene a supplementary Merit Board for 2007 to 2010.
[11]
The
CDS found that the applicant should be reimbursed for the expenses she incurred
from October 12-16, 2006 while she was being relocated.
[12]
The
CDS noted that harassment allegations are to be tendered to the immediate
supervisor, or to the next superior in the chain of command. The applicant had
never filed a formal harassment complaint, so the CDS did not address the
alleged abuse of authority.
[13]
The
CDS found that the applicant had not provided any substantiation of the
allegation that she lost income as the result of health issues resulting from
these events. The CDS noted that it did not have the authority to grant
monetary compensation in the grievance process and that the applicant should
submit a claim against the Crown.
* * * * * * * *
[14]
The
applicant submits that the issues raised in this application deal with
procedural fairness, and are therefore subject to the standard of review of
correctness (Sketchley v. Canada (Attorney General), 2005 FCA 404,
[2006] 3 F.C.R. 392 (C.A.), at paras 53 and 57; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, at paras 45 and 47).
[15]
The
respondent argues, and I agree, that the issue is not one of procedural
fairness, as the CDS found that procedural fairness had been breached and
neither party disputes this finding. The issue is rather one of the appropriate
remedy. The respondent contends that the authority of the CDS to order a
particular remedy is discretionary and should be afforded deference (Zimmerman
v. Attorney General, 2011 FCA 43 at para 21; Smith v. Chief of Defence
Staff et al., 2010 FC 321, 363 F.T.R. 186). I find that the applicable
standard of review is therefore reasonableness.
* * * * * * * *
[16]
The
applicant submits that the Federal Court of Appeal has held that the favoured
legal remedy in cases of wrongful dismissal is reinstatement (Opaskwayak
Cree Nation v. Booth, 2009 FC 225 at paras 38-39, aff’d 2010 FCA 299). The
applicant states that she is aware that the CDS’ offer of redress, namely an
operational deployment, is an appropriate legal remedy, and states that she
accepted the offer, but argues that the CF has failed to implement the CDS’
direction and remedy. The applicant appears to imply that the CF should order
her deployment in spite of her medical restrictions.
[17]
The
respondent argues that the CDS’ remedy of redeployment was reasonable in light
of the information before the CDS at the time, which, the respondent argues,
did not include information regarding the applicant’s medical conditions. The
respondent argues that as the purpose of judicial review is to determine
whether the tribunal committed a reviewable error on the basis of the material
before it when it made its decision, the applicant should not be permitted to
argue that the CDS should have taken into consideration medical issues raised
after the fact (Ontario Assn. of Architects v. Assn. of Architectural
Technologists of Ontario, 2002 FCA 218, [2003] 1 F.C. 331 (C.A.)). The
respondent takes note of the applicant’s argument that the CDS ought to have
been aware of her medical issues at the time of the decision because she had
given access to her medical files, but argues that the onus was on the
applicant to include with the grievance a copy of any relevant documents, and
to submit further documents before the CDS made its final decision. The applicant
did not submit any specific evidence of her medical restrictions despite having
the opportunity to do so between their imposition on July 22, 2009 and the June
21, 2010 decision date. Her comments from January 9, 2010, did not make mention
of her permanent medical restrictions, nor did they take issue with the CFGB
recommendation of a possible future deployment. She did mention her
restrictions in an email to a member of DGCFGA on August 11, 2010 (see Exhibit
S of the applicant’s affidavit) but it does not appear that it was mentioned
specifically to the CFGB or to the CDS.
[18]
The
respondent argues that the documents submitted by the applicant in her record
for this judicial review that were not before the CFGB or the CDS, such as the
Medical Employment Limitations, should not be considered in this review as they
constitute extrinsic evidence that was not before the tribunal. I agree; the
decision of the tribunal is only to be reviewed on the basis of the material
which was before it, and the MEL does not appear in the tribunal record.
[19]
The
respondent argues that as there was no evidence on the record suggesting that
the applicant would be unfit for deployment, the decision to offer a remedy of
future deployment was reasonable.
[20]
I am
in agreement with the respondent’s position. The CDS could not take into
account information that it did not have, and the applicant was given the
opportunity to submit this information on at least two occasions after
receiving notification of her medical restrictions (on September 30, 2009, and
January 9, 2010). The CDS determined that the appropriate remedy would be for
the applicant to be considered for redeployment in accordance with her
qualifications and experience, as the opportunity arose. There is nothing to
indicate that this decision was unreasonable in the circumstances of the case
and in light of the information before the CDS.
[21]
The
applicant has not provided any legal basis for her implication that this Court
should order her redeployment in spite of her medical condition. I do not see
any basis on which this Court could make that order.
[22]
In
the alternative, the applicant seeks monetary compensation, which the CDS
correctly indicated he had no authority to grant. In this respect, the CDS
stated the following, in his decision, at pages 4/8 and 6/8:
As
redress, you have requested financial compensation for lost pay for the nine
months that you were not in OP CALUMET as anticipated. The CFGB explained that
you were not entitled to those deployment related allowances, as you were no
longer deployed. I agree. The theatre related entitlements are designed to
compensate for the loss of amenities and conveniences while on deployment. It
is not appropriate, in my view, to extend these benefits to those who are not
actually subject to the in-theatre privations the theatre entitlements
anticipate. In any case, I do not have the authority to provide you with any
compensation for services that were not rendered to the CF. Should you still
feel you have a case for financial compensation, you can submit a claim to the
Director Claims and Civil Litigation (DCCL) at the following address: . . .
[…]
You
have also provided information regarding the effects of these and subsequent
events on your health. In your submission of 9 January 2010, you note that
the CFGB did not address health and well-being issues that you included under
the heading “Compensation for Lost Income”. However, you have not provided any
substantiation that you lost income as the result of the health issues you have
documented. If, as I infer, you are requesting damages, it is important that
you know that I do not have the authority to grant monetary compensation or ex
gratia payments as FA in the grievance process. That authority lies with DCCL
and you must submit a claim against the Crown.
[23]
At
the hearing before me, the applicant admitted that she had not made any such
claim to DCCL or against the Crown after the impugned decision was made. She
explained that she still hopes that she can be deployed in spite of her medical
condition. If not, as stated in her application for judicial review, she asks
in the alternative for
(c)
. . . an order that the CDS forward the Applicant’s file to the Director Claims
and Civil Litigation (DCCL) along with his recommendation that the Applicant be
paid all the allowances and benefits she was deprived from receiving as of the
date of her unauthorized removal from her duties until she would have completed
her one year tour.
[…]
(e)
. . . an order permitting this application for judicial review to be continued
as an action for damages.
[24]
First,
it is incumbent upon the applicant herself, not the CDS, to submit a
substantiated claim, as was suggested in the decision, to DCCL. Second, absent
extraordinary circumstances, it is too late for this Court, at the hearing of
the application for judicial review, to allow the request that the application
be treated and proceeded with as an action pursuant to subsection 18.4(2) of
the Federal Courts Act. Such a request should and could have been made
at a much earlier stage of the application for judicial review.
* * * * * * * *
[25]
For
the above mentioned reasons, in spite of all the sympathy I have for the
applicant, her application for judicial review is dismissed, without costs.
JUDGMENT
The application for judicial
review is dismissed, without costs.
“Yvon
Pinard”
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