Date: 20110729
Docket: T-1704-10
Citation: 2011 FC 965
Ottawa, Ontario,
July 29, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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SYED, Javed
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Director General of
the Canadian Forces Grievance Authority (DG) dated 13 September 2010
(Decision), which dismissed the Applicant’s grievance, made pursuant to
subsection 29(1) of the National Defence Act, R.S.C, c. N-5 (Act), based
on his finding that the Applicant had been treated fairly, reasonably and in
accordance with Canadian Forces policies and directives and therefore had not been
aggrieved.
BACKGROUND
[2]
The
Applicant is a member the Canadian Forces. He enrolled in the geomatics technician
(geo tech) program in 2006. He failed three baseline exercises at Qualification
Level (QL) 4 of the course and, in consequence, a Progress Review Board (PRB) was
convened, which determined that he should cease his geo tech training.
[3]
The
Applicant successfully grieved this decision, was given credit for QL4 and was enrolled
in QL5 in September 2007. The Applicant performed poorly in QL5 and failed two performance
objectives. In consequence, a second PRB recommended in February 2008 that the
Applicant cease geo tech training and be considered for another trade. The PRB
found that, despite his efforts, the Applicant was unable to apply his theoretical
learning to practical applications and was not ready for operational
deployment. Additional assistance and on-the-job training would not remedy this
deficiency. The Applicant’s commanding officer agreed with the recommendation
and ordered that it be put into effect.
[4]
On
24 July 2008, the Applicant grieved the decision of the second PRB. His redress
of grievance was considered by the Initial Authority (IA), namely the Commander
of the Canadian Forces Base Borden/Canadian Forces Support Training Group. In
June 2009, the IA concluded that the decision to cease the Applicant’s training
was appropriate for the reasons stated by the PRB. The IA was satisfied that
the PRB acted in accordance with Canadian Forces policies and the Base Borden
Standing Administration Instruction (BBSAI 1103).
[5]
At
the Applicant’s request, the IA’s decision was submitted for reconsideration by
the Final Authority (FA) in the grievance process, namely the Director General
of the Canadian Forces Grievance Authority. On 13 September 2010, the FA found
that the PRB’s decision was reasonable and has been arrived at in accordance
with BBSAI 1103. The FA also determined that the process was fair. Although
members of the School of Military Mapping (SMM) sat on the PRB, they did not
have day-to-day involvement with the Applicant and therefore were deemed
objective. This is the Decision under review.
DECISION UNDER REVIEW
[6]
The
FA reviewed the Applicant’s grievance, noting the Applicant’s primary claims:
that he was not given the opportunity to receive remedial training and be
retested on certain assignments, tests and exams; that he was given the
opportunity to take a retest for one performance objective but not permitted to
take remedial training or redo the assignments; that he was evaluated unjustly
on certain assignments because the assignments and questions were open to
interpretation; that he was given insufficient preparation time for the PRB;
that the PRB failed to disclose information to him during the PRB; and that his
grievance was adjudicated by a non-impartial PRB. The FA then noted the
Applicant’s requested redress which, in short, included receiving credit for
the portion of the QL5 that he had completed and an opportunity to redo the
failed performance objective after receiving remedial training.
[7]
With
respect to the Applicant’s claim that he was deprived of remedial training, the
FA reviewed various forms enumerating the remedial training that had been made
available to the Applicant, including individual tutoring and after-hours
remedial training. On this basis, the FA found that the Applicant’s assertions
about the lack of remedial training and instructor availability were
inaccurate.
[8]
With
respect to the Applicant’s claim that he was not allowed to be retested, the FA
noted that the Applicant was retested on one unnamed practical test, for which
he was granted three weeks’ preparation time, and that the Applicant was
granted another opportunity for a retest, which was cancelled after he had failed
a number of evaluations and had no hope of passing, even with a retest. At this
point, the Applicant’s file was referred to a PRB. The FA agreed that the
Applicant was not always permitted the opportunity for a retest but found that
the refusal of a retest was based on a sound rationale.
[9]
With
respect to the Applicant’s claim that he was unjustly evaluated because certain
assignments and questions were open to interpretation, the FA noted that the
school would have evaluated his assignments using the appropriate marking
guides. Had the wrong marking guides been used, all of the students would have
failed. The FA found, therefore, that the Applicant was properly and fairly
evaluated on all aspects of the QL5.
[10]
With
respect to the Applicant’s claim that his fellow students had more opportunity
for practical training than he did, the FA found that the Applicant followed
the same program as his peers and, therefore, did not have less opportunity for
practical training.
[11]
The
FA acknowledged the Applicant’s assertion that his course marks were improving
over time but noted that, notwithstanding such improvement, the number of
failures still raised concerns that the Applicant may not be suited to geo tech
training.
[12]
The
FA noted the Applicant’s assertion that he was given insufficient time to
prepare for the PRB. Given that the Applicant was notified on 24 January 2008
and the PRB was convened on 4 February 2008, the FA was satisfied that 12 days’
notice was sufficient preparation time.
[13]
With
respect to the Applicant’s claim that some members of the PRB lacked
objectivity, the FA stated that he had compared the PRB member’s names to those
personnel who had signed the incident sheets, assessment forms, monthly
reports, counselling record and referral sheets in the Applicant’s file. He
found that the type of interaction that these members had had with the
Applicant did not constitute day-to-day involvement, which is the only type of
involvement prohibited by the fairness guidelines under the BBSAI 1103.
[14]
The
FA was satisfied that the Applicant, although he did not receive full
disclosure of all of the relevant information at the time that the PRB
convened, did receive full disclosure in proceedings before the IA. In
consequence, the Applicant had not been aggrieved.
[15]
The
FA also found that, under the appropriate regulations, the Applicant, as
grievor, was responsible for substantiating his claim that he was not given an
opportunity to present his case. The FA found that there was no information for
him to analyze and assess on this point.
[16]
The
FA concluded that, based on the evidence on file, the Applicant had received
due process on the QL5 geo tech course and on the QL5 PRB and had been treated
in accordance with CF policies and directives. He had not been aggrieved and,
therefore, there was no basis for granting the Applicant redress.
ISSUES
[17]
The
Applicant raises the following issues:
i.
Whether
the Decision was reasonable in finding that the Applicant should not have been
given the opportunity to retake a test or redo the entire course;
ii. Whether the Decision was
based on erroneous findings of fact; and
iii. Whether the grievance
process was conducted fairly.
STATUTORY PROVISIONS
[18]
The
following provisions of the National Defence Act, R.S.C, c. N-5, are
applicable in these proceedings:
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Right to
grieve
29. (1) An officer or non-commissioned member who
has been aggrieved by any decision, act or omission in the administration of
the affairs of the Canadian Forces for which no other process for redress is
provided under this Act is entitled to submit a grievance.
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Droit de
déposer des griefs
29. (1) Tout officier ou militaire du rang qui
s’estime lésé par une décision, un acte ou une omission dans les affaires des
Forces canadiennes a le droit de déposer un grief dans le cas où aucun autre
recours de réparation ne lui est ouvert sous le régime de la présente loi.
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STANDARD OF REVIEW
[19]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to the particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[20]
The
first issue concerns the FA’s findings of fact for which the appropriate
standard of review is reasonableness. See Aguebor v Canada (Minister of
Employment and Immigration) (1993), 160 NR 315, 42 ACWS (3d) 886 (FCA); Aguirre
v Canada (Minister of
Citizenship and Immigration), 2008 FC 571 at paragraph 14; and Dunsmuir,
above, at paragraphs 51 and 53.
[21]
The
appropriate standard of review for an FA’s Decision in a Canadian Forces
grievance process is reasonableness. See Zimmerman v Canada (Attorney General), 2009 FC 1298 at
paragraph 25.
[22]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph
47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[23]
The
third issue concerns procedural fairness. Issues of procedural fairness are reviewable on a standard of correctness. See Dunsmuir
(above) at paragraph 47.
ARGUMENTS
The Applicant
[24]
The
Applicant asserts, first, that the Decision rests on erroneous facts; second,
that the PRB, IA and FA acted unfairly in refusing to allow him to repeat a
segment of the course or to retake the course; and, third, that, in permitting
SMM staff members to sit on the PRB, the Decision sacrifices principles of
procedural fairness to achieve administrative convenience.
[25]
The
Applicant argues that the Decision rests on errors of fact. As the Decision
acknowledges, the IA erred in assuming that the Applicant repeated second year
(QL5); he did not. Also, although the Decision states that the Applicant was
offered an opportunity for retest, the Applicant submits that he was not
available to complete the retest at that time because he was in the middle of
another map-making exam.
[26]
Under
paragraph 18 of the BBSAI 1103, the PRB had the option, inter alia, to
allow the Applicant to: continue training with or without remedial
instructions; or continue training with reassessment recourse. Instead, the PRB
relied on the opinion of the SMM (a non-arms-length body) to find that the
Applicant was unable to pass the retest and, therefore, should be subject to
the most adverse recourse, namely to cease geo tech training. The Applicant
challenges this finding. Other Canadian colleges and universities allow
students who fail courses to retake them and, in some instances, they allow a
student to rewrite a course exam without repeating the course.
The Respondent
The Decision Was
Reasonable
[27]
The
Respondent submits that, given the ample evidence that the Applicant had failed
numerous tests and assignments and was unable to complete the geo tech course
successfully, the Decision was reasonable. The Applicant states that the IA
erred in finding that he had attended the QL5 course twice, rather than once.
The FA acknowledged this error but found it immaterial. Whether the Applicant
had attempted the course previously did not affect the ultimate determination
that the Applicant had failed QL5.
[28]
The
Applicant argues that he should have been given the opportunity to redo a
map-making test or the entire QL5 course because that is an option in paragraph
8 of the BBSAI 1103. The Respondent contends that the Applicant has
mischaracterized the policy. Paragraph 8 of BBSAI 1103 refers to options
available at the second level of review before a PRB is held. At the
Applicant’s level of review, namely the third level, paragraph 18 of the BBSAI
1103 provides that the PRB can recommend that a member cease training. Moreover,
a retest is permitted if the attempt is likely to be successful. In the Applicant’s
case, a retest was not likely to be successful. Thus, the FA acted reasonably
in finding that the decision to deny retesting was sound.
The Applicant’s
Grievance Process Was Fair
[29]
The Respondent
submits that the progress of personnel undergoing training in the Canadian
Forces is closely monitored to ensure that training issues are addressed in a
fair and expeditious manner. The BBSAI 1103 sets out a three-level progress
review process, including: a Progress Review; an Independent Review Board; and a
Progress Review Board. A PRB reviews all circumstances considered at the first
and second levels of review and deals with issues likely to have a significant
impact on the learner’s future training. A PRB is convened only where there is
a serious or prolonged problem or where a learner may be ordered to cease
training.
[30]
The
Respondent submits that procedural fairness consists of three core elements:
the right to know the case to be met; the opportunity to make submissions; and
the right to an impartial adjudicator. Each element was provided in the instant
case.
[31]
On
24 January 2008, the Applicant received written notice that a PRB would be
convened and why. As the FA acknowledged in its Decision, the Applicant’s
assignments, student products, test material, marking guides and exams should
have been disclosed to him at the PRB stage. This error was subsequently
corrected at the IA stage; therefore the FA concluded that the Applicant had
not been aggrieved. The Applicant clearly knew the case to be met.
[32]
The
Applicant also had the right to make submissions to the PRB and exercised that
right in accordance with the BBSAI 1103.
[33]
Finally,
although the Applicant asserts that SMM staff should not have been permitted to
sit on the PRB, the Respondent submits that the PRB’s composition was in
accordance with the BBSAI 1103. Members of the Applicant’s school were not
precluded from sitting on the PRB, as long as they did not have day-to-day
dealings with the Applicant, and they did not. The Applicant has not provided
any reasons to substantiate this claim of non-impartiality. Moreover, the
Decision under review is the Decision of the FA, not the PRB. The Applicant has
not argued that he was denied procedural fairness by the FA.
ANALYSIS
[34]
The
Applicant is self-represented in this matter. His written and oral arguments
allege errors of fact and procedural unfairness, but there is little by way of
evidence or cogent argument to support his claims. At the hearing in Ottawa on 19 April 2011, the
Applicant withdrew his arguments on procedural unfairness and told the Court
that his application is now based upon the unreasonableness of the FA’s taking
the most drastic recourse and in not allowing him to re-take courses, tests and
exams which he had failed.
Errors of Fact
[35]
The
Applicant says that the Decision is based upon errors of fact. First of all, he
says that he was not given an opportunity to retake the failed map-making test.
He says he was not available to complete the retest when it was offered because
he was in the middle of the map-making exam. He also argues that the map-making
test was not related to the decision to withdraw him from the course. That
decision was based upon the map-making exam, and he was never given an
opportunity to retake the exam at any time.
[36]
As
regards retesting, the FA points out that the Applicant was retested on one
unnamed practical test but that he was not retested on the theory exam for PO 006. The reason for
this was also given:
Originally,
you were granted the opportunity for a retest, but this was cancelled after you
failed six of the seven TDAs and PO 009. Given the number of failures, you
could not pass PO 006 no matter how well you scored on the
theory exam retest. Therefore, scheduling a re-evaluation would have been
pointless, and instead your file was referred to a PRB. As noted on page 70 of
the disclosure package, this decision was in accordance with the training plan
in effect at that time. It states that a member may be allowed to repeat a
performance check on any failed PO if the attempt is likely to be successful.
To conclude, I agree that you were not always permitted the opportunity for a
retest, and this decision was based on sound rationale.
[37]
It
looks to me as though the Applicant is being pedantic on this point. According
to the training plan, a retest for a performance check is permitted if the
attempt is likely to be successful. The Applicant’s attempts at a retest were
not likely to be successful, hence the finding of the FA that this was sound
policy. I do not see any mistake of fact in this regard. The record shows that
the Applicant had failed the following:
a.
Military
Writing Final Assignment in EO 009.05;
b.
Firearms
Skills Test;
c.
Map
Reproduction Practical Assignment;
d.
PO 001 overall;
e.
Practical
Portion, Final Exam, Survey Operator Exam and Final Theory Exam in PO 002B;
f.
One
assignment, the Theory Exam and the Final Practical Exam in PO 003;
g.
Written
Performance Check in PO 004 and failure of PO 004 overall;
h.
Three
exercises, the Final Written Performance Check, six of the seven Tactical
Decision Aids, the Final Theory Exam and the Final Exam in PO 006, resulting in
a failure of PO 006 overall; and
i.
General
Geomatics Exam and Final Written Performance Check in PO 009, resulting in a
failure of PO 009 overall.
Given this record of failure and the training plan,
it may be possible to disagree with the FA’s Decision, but I do not think it can
be said that it falls outside of the range of possible acceptable outcomes
which are defensible in respect of the facts and the law. See Dunsmuir,
above, at paragraph 47.
[38]
The
Applicant also says that he was not given an opportunity to redo the course as
permitted by BBSAI 1103, paragraph 8, section a or b. However, the Applicant
is simply mischaracterizing the policy as it applies to his situation.
Paragraph 8 of BBSAI 1103 refers to options available at the second level of
review before a PRB is held. At the level of review applicable to the Applicant
the PRB can recommend that a member cease training. This is precisely what
happened, and the Applicant has not shown a mistake of fact or an unreasonable
conclusion in this regard.
[39]
The
Applicant also says that an error of fact occurs because of paragraph 8 of the
IA decision where it is assumed that the Applicant repeated the second year of
QL5. However, this is not a mistake in the Decision under review. The FA in his
Decision agrees with the Applicant, “You are correct in paragraph 4 of the
representation, where you state that you attended QL5 once, not twice.”
[40]
Clearly,
the FA does not make an error of fact. The FA correctly identifies the
situation, but the mistake by the IA makes no material difference to the FA’s Decision.
The FA’s Decision takes into account all of the facts on the record. The
Applicant has not explained how a mistake by the IA that was correctly
identified by the FA and taken into account can mean an error of fact or an
unreasonable decision by the FA. He simply disagrees with the Decision.
Unfairness
[41]
The
Applicant also alleges various forms of unfairness in the Decision but his real
complaint as confirmed at the hearing is that
Had
[the] PRB, IA or FA applied the principle of reasonable fairness it would not
have chosen the most adverse recourse, CT and refer to PSO, relying on
technical opinion from School of Military Mapping (SSM) staff in non-arms
length body with PRB as to the applicants (sic) inability to pass the retest.
Canadian Colleges and Universities allow failed
courses to be retaken and in some instances they allow a course exam to be
rewritten without repeating the course.
[42]
First
of all, the Applicant has not argued a lack of procedural fairness by the FA,
which made the Decision under review. Although he does not say so, I am
assuming that the Applicant wishes to argue that the FA was itself unfair in
endorsing a tainted earlier decision and process or that it was at least
unreasonable in doing so.
[43]
These
allegations remain nothing more than bald assertions. The Applicant produces no
argument or evidence to suggest that the composition of the PRB in this case
did not adhere to established policy, either in their composition or
deliberations, or that the members were any less than completely impartial when
it came to assessing the Applicant’s capabilities or his needs. As the
Respondent says, the Applicant has simply failed to demonstrate why staff from
his school who had no day-to-day dealings with him but who did have a
specialized knowledge about the skills that a geo tech needs could not provide
a fair assessment of the Applicant’s progress. Also, the fact that other
Canadian colleges and universities allow courses and exams to be retaken under
certain conditions does not mean that the Applicant was treated unfairly in
this context where he is a member of the Armed Forces and is being paid a
salary to fulfill identified objectives. The system to which he has subjected
himself has its checks and balances. One of the things it does is identify
learners who, on the basis of past performances, have no aptitude for geomatics
and no chance of qualifying as geomatic technicians. The purpose is not to
punish them but to redirect them so that they do not waste time, resources and
effort pursuing a course of study that, reasonably speaking, they will not be
able to complete.
[44]
In
his notice of application, the Applicant alleges that PRB member 2 had a
conflict of interest and that PRB member 3 lacked objectivity, but these
allegations are not substantiated or followed up. The FA fully dealt with this
matter.
[45]
In
reviewing the Decision as a whole, I cannot find anything that could be
described as a reviewable error based upon unreasonableness or procedural
unfairness. The Applicant is naturally disappointed, but this does not mean that
he has not been treated fairly.
[46]
I
believe that the Decision under review is reasonable and was arrived at in a
manner that accorded with the procedure set out in the BBSAI 1103.
[47]
The
FA, in his Decision, acknowledges the Applicant’s hard work in the program,
which renders all the more convincing his argument that poor suitability to the
geo tech trade is what impairs the Applicant’s success.
[48]
The
Applicant argues that he has been deprived of remedial assistance, but the FA
cites evidence that assistance was available by request and that the Applicant
did request and receive help.
[49]
The
Applicant argues that he was given insufficient opportunity to redo various
tests and assignments. It is clear from his own submissions and from the
evidence considered in the Decision, however, that the Applicant did redo at
least one test and was scheduled to redo a second exam in theory. The theory
retest was cancelled, however, because the Applicant had failed so many of the
other prerequisites and components that he could not have passed the
performance objective no matter how well he scored in the retest. According to
policy, a retest is permitted where the attempt is likely to be successful. As
the attempt was bound to fail, the decision to withdraw the proffered retest
was based on a sound policy.
[50]
The
Applicant claims that he was treated differently from his classmates. He states
that the tests and assignments in the geo tech course were open to
interpretation and that this subjective approach worked against him. The FA
points out, however, that instructors evaluated students using marking guides,
with the same marking guide being used for every student. Moreover, the FA
found that the Applicant did not receive less practical training than his
classmates; everyone followed the same curriculum.
[51]
I
note that this application concerns the Applicant’s difficulties in fulfilling
the requirements of QL5 of the geo tech program. However, the Applicant
struggled in a similar fashion at QL4 and advanced to QL5 only after
successfully grieving a PRB’s recommendation that he should cease his geo tech
training.
[52]
The
Decision identifies a significant concern: the Applicant cannot apply his
theoretical learning to practical applications. Despite his efforts and the
remedial attention that he has sought and gained, he is not ready for
operational deployment because he has difficulty executing tasks independently
and requires team support. The Decision is clear in finding that additional
assistance and on-the-job training would not remedy these deficiencies. This is
based upon what his instructors have said about him: that he was a “weak
student”; “showed very little effort”; needed “constant supervision”; needed
“to pay more attention to detail”; needed to “try harder to integrate himself
with his new classmates”; did not “grasp material as quickly as the rest of the
group”; “relied too much on his peers”; “was advancing at a slower pace than
the rest of his class”; continued making errors similar to the errors for which
he had previously been corrected; “failed to properly complete 7 of the 11
critical aspects for [the project]”; and was seen taking notes from another
student’s independent project without permission.
[53]
His
instructors further commented that his marks were “going down” despite the
extra tutoring; a project was “a very poor product”; there were “obvious
inconsistencies” and errors in his map; his work product failed “to comply with
the approved standards”; his “entire product was poorly thought out and ineptly
constructed”; “there were gaps in data”; and “it was impossible to see any of
the sights (sic)” his map.
[54]
It
cannot be said that the FA’s decision to endorse previous conclusions
concerning the Applicant’s unsuitability for geomatics is without an
evidentiary base. The Court cannot interfere with the Decision merely because
the Applicant disagrees with this assessment and feels that he is suitable.
[55]
In
terms of procedural fairness before the PRB, the FA found that the Applicant
had received 12 days’ notice of the PRB, which was considered sufficient. In
accordance with paragraph 12 of the BBSAI 1103, none of the SMM instructors who
sat on the PRB had day-to-day dealings with the Applicant and, for this reason,
were not precluded from sitting on the board. The FA recognized that the PRB
did wrongly refuse to disclose certain documents to the Applicant, but he noted
that this error was corrected at the second level of review. With respect to
the instant Decision—the third level of review—the Applicant appears to have
had access to all relevant documentation. Therefore, any assertion that he was
deprived of an opportunity to present his case is unsubstantiated.
[56]
It
appears that the course of action undertaken by the PRB was well within its
jurisdiction and arrived at through fair process. The Applicant is unhappy with
that choice, but the rationale for it is well-explained and reasonable.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application is dismissed.
2.
No
costs are asked for and none are awarded.
“James Russell”
Judge
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