Date: 20070413
Docket: T-714-06
Citation: 2007 FC 386
Ottawa, Ontario, April 13,
2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
WILLIAM DAVID GERARD JONES
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] On April 19,
2006, a judge of the Federal Court granted the applicant an extension of time
within which to commence an application for judicial review of a decision to
release him from the Canadian Forces. The release decision was dated September
15, 1997 and was communicated to the applicant on September 22, 1997.
[2] The
respondent contends that the applicant’s failure to pursue a grievance in
relation to the release decision constitutes an absolute bar to judicial review
and the application must be dismissed.
[3] I
conclude that, as a general rule, the grievance procedure constitutes an
adequate alternative remedy. However, special or exceptional circumstances may
justify a departure from the general rule. On the unique facts of this matter,
this is such a case. I also conclude that the applicant’s right to procedural
fairness was breached. Consequently, his application for judicial review will
be allowed.
Introduction
[4] The
applicant is a self-represented litigant. He made an admirable attempt to
comply with the requirements of the Federal Courts Rules, SOR/98-106
(the Rules) and produce the requisite documentation for this application. In
spite of his efforts, the contents of his record are disjointed. His affidavit
and the attachments thereto were of sufficient concern to the respondent to
prompt the filing of a motion to strike certain paragraphs and attachments.
Mr. Justice Lemieux heard the motion and granted the request, in part.
[5] When
litigants are self-represented, it is not uncommon to find their documentation
wanting. Established rules, procedures and evidentiary matters, with their
attendant niceties and distinctions, present challenges for lay persons not
familiar with them. In a situation such as this, where one party is
unrepresented and the other party is so ably represented, the court must be
vigilant to ensure both parties are provided the opportunity to understand and
meaningfully present their respective cases, regardless of representation.
[6] The
applicant’s submissions at the hearing brought clarity to his written
documentation. The respondent cautions that many of the applicant’s comments
constitute “evidence” that was not contained in the record. The respondent is
partially correct. However, it is also true that the applicant’s
representations merely clarify much of the incoherent content in his
affidavit and attached documents that form part of the record.
[7] My
recitation of the facts is a composite of information from the record as
clarified at the hearing. I exclude that which the respondent characterizes as
“oral evidence” provided by the applicant at the hearing. My synopsis of the
background includes only those facts that I consider to be material.
Unnecessary detail, although plentiful, is omitted. Throughout these reasons,
the use of acronyms is prolific. Therefore, a glossary is attached as Schedule
“A”.
Factual Background
[8] The
applicant served as a marine engineer in the Canadian Forces (CF) for nearly 30
years. He attained the rank of Chief Petty Officer First Class (CPO1), the
highest rank in the Navy for a non-commissioned officer.
[9] In
September of 1994, the applicant was diagnosed with severe depression and was
referred to the National Defence Medical Centre (NDMC) in Ottawa for
treatment. He returned to full-time employment in March of 1995 and had
regular access to a psychiatrist. When he first returned to work, he was
posted to the Fleet School (CFFS) at Canadian Forces Base (CFB) Esquimalt as a
Divisional Engineering Chief. In September of 1995, he was appointed by
Pacific Command to the position of marine engineering trade advisor.
[10] According
to the applicant, as trade advisor, he brought specific safety violations to
the attention of his commanding officers. He claims that these briefings were
not well received by command and that he was told to “leave the duty watch
issue alone”, to “let time take its toll” and the “issues would work themselves
out”.
[11] On
May 28, 1996, the Chief of the Defence Staff (CDS) visited the base for a
‘town-hall” style meeting. The applicant was present for a “gloves-off talk”.
After the CDS outlined his views on the ongoing changes in the CF and the
attendant leadership imperative, the applicant voiced his opinion with respect
to certain problems affecting the trade. He indicated that the CDS would have
his support and that of his peers, noting that “it [is] time for us to put away
our golf clubs and get on with looking after the troops”.
[12] As
it happened, the Rear Admiral (the Admiral) of CFB Esquimalt was an avid
golfer. The applicant’s commanding officers felt that the applicant’s remarks
were inappropriate and perceived them to be directed at the Admiral. The
following day, the applicant was called into the Admiral’s office and was asked
to clarify his statement regarding the “golf clubs”. The applicant responded
that his comments were not aimed at anyone in particular. He maintained that
he did not know the Admiral was a golfer. The Admiral requested an apology.
The applicant refused.
[13] On
June 3, 1996, while he was on annual leave (vacation), the applicant was called
in to meet with the Commandant of the Fleet School to address the
situation regarding the Admiral. At the meeting, the applicant avowed that he
had done nothing wrong. On June 6th, he was called in to meet with
the Commandant again. The applicant contends that, on this occasion, he was
pressured to resign from his position as trade advisor. He refused. The
Commandant informed him that an appointment had been scheduled for him to meet
with the base psychiatrist.
[14] When
he returned from leave, the applicant was instructed to attend at the Admiral’s
office the next morning. During that meeting on June 11th, the
Admiral informed the applicant that he (the Admiral) had lost confidence in the
applicant because he had not been “commuting well to the trade” and was hurting
morale. The Admiral further stated that the applicant’s comments to the CDS
were unbecoming. The applicant was dismissed from his position as trade
advisor.
[15] The
applicant then requested a meeting with the Commandant. His request was
granted and the meeting took place on June 17th. The applicant
asked for clarification regarding his termination as trade advisor and inquired
about the protocol for contacting the CDS to ascertain whether offence had been
taken as a result of his remarks at the May 28th meeting. When he
did not receive a response, the applicant personally contacted the office of
the CDS. He also made an abuse of power complaint.
[16] On
October 11th, the applicant launched a grievance objecting to his
termination as trade advisor. He lodged an harassment complaint ostensibly to
support the abuse of power complaint made in June. Shortly thereafter, the
applicant was directed to attend for a medical examination. On October 31st
he was examined by a medical officer (who held the rank of Lieutenant) at CFB
Esquimalt (the first medical officer). The directive to the medical officer
stated, among other things, “[m]ust have Task Statements done…[h]ave medical
typed ASAP LCol Davidson will sign Friday AM then ship to D Med Red
Tagged attn Maj Menard” (applicant’s affidavit, exhibit “C”, applicant’s record
at p. 28).
[17] The
task statements were completed and signed by the applicant on October 31st.
Apparently, for reasons that are not clear from the record, they were not
signed by the medical officer until January 8, 1997. The task statements were
amended on February 5, 1997, by a second medical officer who held the rank of
Major. Although the applicant knew of the amended task statements, there is no
indication that he signed them.
[18] Meanwhile,
on December 4, 1996, the first medical officer recommended that the applicant’s
medical category be amended to a “permanent medical category with specific
limitations on the applicant’s employment with the CF”. This recommendation
was contained in a “CF 2033 Medical Examination” (the CF 2033) and a “CF 2088
Notification of Change of Medical Category or Employment Limitation” (the CF
2088). Both documents were then signed by the second medical officer. (The CF
2033 was signed on February 5, 1997 and although the CF 2088 is not dated, it
is likely that it too was signed on February 5th). Both documents
were then forwarded to and approved by the Surgeon General as evidenced by his
signature (on both documents) on February 25th. The Surgeon
General’s comments indicated that the applicant’s case was to be referred to
the Career Review Board (Medical) (CRB(M)).
[19] The
Director of Personnel Career Administration (DPCA) at National Defence
Headquarters (NDHQ) returned the documents to the base because the signatures
of the applicant and the Commandant were not on the CF 2088, as required. The
applicant signed the CF 2088 on April 30, 1997. On May 2nd, the
Commandant signed the document and recommended medical release. On May 5th,
the documents were forwarded to the Chairman of the CRB(M).
[20] The
significance of the change in the applicant’s medical category should be noted
before continuing with the chronology of events. The change altered the
applicant’s geographical (G) and operational (O) factors. That is, instead of
being assessed at G2 and O2 (which satisfied the minimum level of employability
of his occupation as a marine engineer), the applicant’s factors were
downgraded to G4 and O3. Factor G4 was assigned to a member because of medical
limitations inherent to the medical condition itself or because of an
unacceptable risk to the health or safety of the member or fellow workers. For
example, where the operational environment in relation to the medical condition
was such that the member was considered unfit for two or more specific military
environments or where the member generally required scheduled medical care by a
medical officer more frequently than every six months, a G4 factor was
assigned.
[21] Factor
O3 was assigned to a member who was capable of performing the majority of
occupational or physical tasks at an individual pace, but who had specific
employment limitations, which could be clearly and specifically detailed, and
which prevented the member from fully meeting the generic and the military
occupation (MOC) task statements.
[22] Returning
to the factual context, after the documents were forwarded to the Chairman of
the CRB(M) on May 5th, the input and recommendation of the
applicant’s career manager were obtained. The career manager stated that the
applicant was employable for 87.5% of his military occupation and recommended
that he be retained with restriction (RWR). However, the Section Head
Lieutenant Commander recommended release on the basis of violation of the
universality of service principle.
[23] On
May 20, 1997, the NDHQ forwarded correspondence to CFB Esquimalt. The
correspondence described the CRB(M) process and what was required from the
applicant and the commanding officer. It explained that both the letter and
the enclosed CRB(M) file had to be disclosed to the applicant and that the
applicant had 14 days within which to make written representations to the
CRB(M). The disclosure process, at the time, was effected through the chain of
command. Thus, the package was forwarded to the office of the Commandant. The
Commandant was to inform the DCPA “by message without delay” if the applicant
did not wish to make representations.
[24] On
July 3, 1997, a message was forwarded from the DCPA to the Commandant. It
indicated that the correspondence and disclosure had been sent from NDHQ and
signed for at CFB Esquimalt. (The individual who signed for the package was the
Commandant’s secretary). However, no further message had been received by the
DCPA to confirm that the information was provided to the applicant.
[25] On July 20, 1997, a CFB Esquimalt message to
NDHQ Ottawa stated “[letter] and contents were transmitted to member. Regret
not informing earlier. Member will not be responding”. The applicant
maintains that he never received the notice and disclosure.
[26] On
September 3, 1997, the applicant submitted a grievance alleging that his
harassment complaint in October of 1996 had not been handled in compliance with
the harassment complaint investigation policy.
[27] On
September 11, 1997, the CRB(M) met to address the applicant’s employment
limitations noted as:
• unfit field, sea,
UN and isolated postings
• fit PT but may be
limited in type, duration, frequency of the exercise.
[28] The
CRB(M) noted that because these employment limitations violated the
universality of service principle, percentage of employability had no
application. The CF bona fide occupational requirements (BFORs) for
positions such as that held by the applicant required members to perform their
duties at sea. In the applicant’s case, his employment limitations did not
meet all of the BFORs associated with subsection 33(1) of the National
Defence Act, R.S.C. 1985, c. N-5 (NDA). Consequently, neither retention
nor transfer could be considered. Release was the only alternative. The
CRB(M) concluded that there was no alternative but to release the applicant on
medical grounds because he was “disabled and unfit to perform the duties in the
member’s present trade or employment, and not otherwise advantageously
employable under existing service policy”. The applicant’s retirement date was
established at March 25, 1998, or earlier if he so desired. On September 15,
1997, the DCPA approved the recommendation of the CRB(M).
[29] On
September 22, 1997, the applicant was informed of the decision by his immediate
superiors and received a copy of the message summarizing the finding of the
CRB(M). The applicant claims that he informed his superiors at that time that
he wanted to see the documents.
[30] The
applicant requested (and eventually received) his military file through an access
to information request, but did not receive it prior to his release. Further,
he claims that he did not receive “complete information” regarding the CRB(M)
file until August of 2005 when it was provided to him by the CF Ombudsman’s
office. The documentation in the record supports the applicant’s
representation. The date stamp of the Ombudsman’s office indicates that the
documents were received by that office on July 30, 2004 and the Ombudsman’s
letter to the applicant enclosing the documents is dated May 20, 2005. The
Ombudsman’s correspondence explains that the CRB(M) report is contained in a
file that is separate from other records regarding the applicant.
[31] The
applicant maintains that he was first told to pursue the issue of his release
through the Ombudsman’s office in January of 1998. The Ombudsman’s
correspondence indicates that the Director Military Careers Secretariat
directed [the applicant] to the Ombudsman’s office in January of 1999.
[32] On
September 5, 2003, the applicant’s grievances dealing with the issues of his
termination as trade advisor and harassment were denied at the highest level.
[33] By
order of the Federal Court dated April 19, 2006, the applicant was granted
leave to commence an application for judicial review of the September 15, 1997
medical release decision.
Issues
[34] While
much time was devoted to argument relating to the merits of the CRB(M)
recommendation regarding medical release, I am satisfied that this application
turns on a determination of two questions as they constitute the heart of the
matter.
(1) Should
the applicant’s failure to submit a grievance in relation to his medical
release preclude recourse to judicial review of the medical release decision?
Put another way, should the court decline to entertain this application because
of the applicant’s failure to exhaust the grievance process, an adequate
alternative remedy?
(2) If
the answer to the first question is negative, was there a breach of procedural
fairness in regard to the CRB(M) hearing? The subsidiary question also arises
whether, if a breach of procedural fairness did occur, the application should
nonetheless be dismissed because the result would have been the same in any
event.
Analysis
Adequate Alternative
Remedy
[35] I
stated earlier, and it is common ground, that on September 22, 1997, the
applicant learned of the medical release decision and received a copy of the
message summarizing the recommendation of the CRB(M) that was approved by the
DPCA. It is also common ground that the grievance process at the time was
governed by section 29 of the NDA (as it then read), chapter 19 of the Queen’s
Regulations and Orders (QR&Os) and the applicable Canadian Forces
Administrative Orders (CFAOs). QR&O Article 19.26 provided a one-year time
limit for submitting a grievance. However, section 8 of CFAO 19-32 (stated to
be an amplification of the regulations contained in the QR&Os) mandates
that a complaint must be submitted before a member’s release from the CF.
Therefore, the applicant had six months within which to grieve his release.
Because he is not a member of the CF, the current discretionary provision in
Article 7.02(3) of QR&O chapter 7 has no application. Grievance at this
stage is not an option.
[36] The
respondent forcefully argues that the applicant’s only avenue of redress is the
statutory grievance procedure. To allow this matter to proceed would permit
the applicant to circumvent the process legislated by Parliament to deal with
such matters.
[37] The
respondent relies on Anderson v. Canada (Canadian Armed Forces), [1997]
1 F.C. 273 (C.A.) (Anderson) wherein the Federal Court of Appeal
determined that the grievance procedure provided for in the NDA and chapter 19
of the QR&O constitutes an adequate alternative remedy and on Vaughan v.
Canada, [2005] 1 S.C.R. 146 (Vaughan) wherein the Supreme Court of
Canada concluded that the court should not jeopardize the comprehensive dispute
resolution process contained in legislation by permitting access to the
courts.
[38] Additionally,
the respondent refers to various authorities from the Federal Court holding
that where an expansive resolution mechanism exists, a complainant is required
to pursue a remedy through the statutory mechanism before turning to the courts
for relief: Jones v. Canada (1994), 87 F.T.R. 190 (T.D.); Pilon v.
Canada (1996), 119 F.T.R. 269 (T.D.); Bernath v. Canada (2005), 275
F.T.R. 232 (Proth.), overruled on appeal 2007 CF 104, A.C.F. no. 138, appeal
pending. Further, the fact that the applicant may now be out of time to engage
the statutory appeal process does not render the remedy inadequate for it would
be anomalous if, by failing to grieve in time, the applicant could invoke the
supervisory jurisdiction of the court and avoid the requirement to first exhaust
his alternative remedy: Lazar v. Canada (Attorney General) (1999),
168 F.T.R. 11 (T.D.) aff’d. (2001), 271 N.R. 10 (F.C.A.).
[39] In
sum, the respondent contends that the applicant had an adequate alternative
remedy that he chose not to pursue. He was required to seek redress within the
statutory grievance process and his judicial review ought to be dismissed for
failure to pursue the adequate alternative remedy.
[40] The
concept of “adequate alternative remedy” is well established in the jurisprudence.
The test is whether the alternative remedy is adequate, not whether it is
perfect: Froom v. Canada (Minister of Justice), [2005] 2
F.C.R. 195 (C.A.). I agree
with the respondent that Anderson stands for the
proposition that the grievance process mandated by section 29 of the NDA and
set out in the applicable QR&Os affords an adequate alternative remedy. I
have applied that principle recently in Graham v. Canada 2007 FC 210,
F.C.J. No. 282 and Sandiford v. Canada, 2007 FC 225, F.C.J. No. 293.
Moreover, as a general rule, it is premature to launch an application for
judicial review before the grievance process is exhausted because judicial
review lies normally with respect to a final decision.
[41] The
respondent seeks to impose a “hands off” approach by reference to Vaughan. I agree
that Vaughan is
instructive, however, it was decided in the context of an action. That is, the
individual had initiated a statement of claim and was suing. The court frowned
on the plaintiff’s “dressing [the matter] up as a negligence action”.
Parenthetically, I note that the Federal Court authorities cited by the
respondent also involved circumstances where lawsuits had been launched.
Additionally, Vaughan was concerned specifically with the field of
labour relations, an area “long recognized as a field of specialized expertise”
(para. 13).
[42] Insofar
as the respondent suggests that the Supreme Court’s conclusions regarding the
“general rule of deference in matters arising out of labour relations”
prevailing in most circumstances applies equally to the military grievance
context, the respondent misconstrues the ruling of the Federal Court of
Appeal. Anderson does not
stand for the proposition that the courts should adopt a “hands off” approach
to the CF grievance process. Rather, the Federal Court of Appeal held that the
court will not undertake a judicial review where an adequate alternative remedy
exists.
[43] Thus,
the pertinent question is whether the Anderson principle
applies across the board and without exception. With respect, in my view, the
answer must be no. In special circumstances, the court has carved out
exceptions to the general rule. Prothonotary Hargreave discussed this issue in
Chisholm v. Canada (Attorney General) (2003), 231
F.T.R. 155 (T.D.). See also: Loiselle v. Canada (Attorney General)
(1998), 161 F.T.R. 232 (T.D.); Brown v. Canada (Attorney General)
(1998), 148 F.T.R. 50 (T.D.); Hawco v. Canada (Attorney General)
(1998), 150 F.T.R. 106 (T.D.); McClennan v. Canada (Minister of
National Defence) (1998), 150 F.T.R. 96 (T.D.); Hutton v. Canada (Canadian
Armed Forces, Chief of Defence Staff) (1997), 135 F.T.R. 123 (T.D.).
[44] In
Gayler v. Canada (National Defence) (1994), 88 F.T.R. 241 (T.D.), which
pre-dates Anderson, Mr. Justice MacKay concluded that the applicant was
entitled to proceed by way of judicial review without pursuing the grievance
process. In Anderson, the Federal Court of Appeal specifically noted
that the circumstances in Gayler were different than those in Anderson thereby
recognizing, by implication, that special circumstances may justify departure
from the general rule. Given the discretionary nature of judicial review, this
is not a surprising result.
[45] Whether
special circumstances exist is a fact-specific analysis, as the post-Anderson
cases have demonstrated. Exceptions to the general principle are rare and have
been found to exist only where the factual circumstances warranted them.
[46] The
respondent contends that each of the authorities where judicial review was
granted, without resort to the grievance process, is distinguishable. I do not
disagree with that position. It is exceedingly rare to find identical factual
contexts. However, that does not mean that guidance cannot be derived from the
jurisprudence where special circumstances were found to exist. Indeed, I find
that the circumstances in the Hawco case are similar, albeit not
identical, to those in this case. Counsel further suggests that if Vaughan had been
available, the cases might have been decided differently. That submission is
speculative at best. Moreover, for reasons that will become apparent, Vaughan, in my view,
supports a determination that special circumstances do exist in this matter.
[47] I
reiterate that the applicant did not bring an action against the government.
He seeks judicial review of the decision to release him from the Navy. Hence,
this is not a situation that gives rise to the mischief underlying the decision
of the Federal Court of Appeal in Canada v. Grenier, [2006] 2 F.C.R. 287
(C.A.).
[48] Section
29.15 of the NDA specifically provides for judicial review (in the Federal
Court) of a decision by a final authority in the grievance process. The issue
here is narrow: do the facts reveal special circumstances warranting a finding
that the applicant should be entitled to seek judicial review without first
exhausting the grievance process?
[49] I
should state at the outset that I am satisfied that the applicant did not have
disclosure of the notice of the CRB(M) hearing or the CRB(M) disclosure package
either prior to the hearing or before his release. My reasons in this respect
are delineated later in my analysis under the heading “procedural fairness”.
For purposes of the “adequate alternative remedy” analysis, it is sufficient to
say that disclosure was not provided.
[50] The
applicant claims that he wanted to grieve the release decision but was not able
to obtain the necessary documents. The respondent says that beyond a single
statement in his affidavit, the applicant has not provided evidence on the
record to support this statement. The respondent points to the affidavit of
the Enquiries and Complaints Officer with the Directorate of Canadian Forces
Grievance Administration (DGCFGA) wherein that individual states that there is
nothing in the DGCFA records to indicate that the applicant made an application
for grievance with respect to the medical release decision nor is there
anything in the records to indicate that the applicant inquired about his
rights to present a grievance. These comments are not particularly helpful in
the absence of any statement that such records would be made in the normal
course.
[51] It bears repeating that the grievance process at the time in
question was governed by section 29 of the NDA and chapter 19 of the
QR&Os. Article 19.26(4) provides that an individual may complain orally
where the member considers that he has suffered any personal oppression,
injustice or other ill-treatment, or has any other cause for grievance.
[52] Although
the chronology of the applicant’s affidavit is disjointed, at paragraph 74 he
describes having been informed of the recommendation of the CRB(M). He then
states, “I requested through the divisional system, information on what grounds
I was being released. I was informed that I would receive those documents. I
was not given that information prior to my release in April 1998”.
[53] At
paragraph 81 he swears that he had not received the requested documents and
wanted to grieve his release. He states that he was informed by the divisional
system that, because of changes to the CF policy, the grievance regarding his
medical release would have to be handled through the Canadian Forces
Ombudsman. He claims that he contacted that office and a file was opened.
[54] At
paragraph 82, he deposes: “5 April 1998, I was released. I had not received
the disclosure documents from NDHQ. I contacted the Chief of Defence Office
for help in getting the information to do with my medical release and action on
my complaints”.
[55] CFAO
19-32, item 3 provides support for the applicant’s position. It states that it
is the responsibility of the member seeking redress to supply the information
required to substantiate the complaint. It requires that originals of correspondence
and other documents pertaining to a complaint, where available, be submitted to
the redress authority considering the complaint. If originals are not
available, legible copies are to be submitted.
[56] The
applicant’s affidavit discloses that the applicant considers himself to be
professional and principled. In situations where he felt that a wrong had been
committed, he did not hesitate to attempt to right it. The applicant does not
strike me as a person who would sit on the fence and fail to pursue the
recourse that was available to him. His belief that he needed possession of
the documentation from the CRB(M) in order to submit a written grievance is not
an unreasonable one.
[57] Additionally,
in argument, the applicant noted that his divisional officer had acted as his
assisting officer in his first two grievances and that his request for the
documents was made to his divisional officer. These submissions are supported
by the contents of the record. The applicant’s position is that his divisional
officer had a duty to assist and did not do so in relation to the release.
[58] Turning
to the respondent’s submissions with respect to Vaughan, I should
comment on the respondent’s position that the “inadequacy of the process was
not raised by the applicant”. Therefore, the respondent suggests that the
court should be loath to tread upon ground where the applicant did not go. As
I advised counsel at the hearing, when the respondent argues that specific
factors of Vaughan are both
relevant and applicable, the court will address the arguments. The respondent
relies upon Vaughan not only in oral argument but in the written
memorandum of fact and law as well. Moreover, I consider the applicant’s
entire affidavit and specifically his statement at paragraph 146 that “the
system is broken or does not want to deal with [the] result created by
disregarding CFAOs and the legal process” as being clearly indicative of a
complaint regarding the process.
[59] The
respondent candidly acknowledges that the grievance process in place at the
time did not provide for an “outside” adjudicator. The current process in
chapter 7 of the QR&Os requires that matters of release from the CF be
referred to the Grievance Board (established by section 29.16 of the NDA). The
respondent submits that although this is a factor, it is not (in and of itself)
sufficient to render the process not meaningful. I agree.
[60] Next,
the respondent refers to Justice Binnie’s comments that the labour dispute in Vaughan was a decade
old. This was considered to be indicative of the fact that the more informal
dispute resolution procedures “generally are faster, cheaper and get the job
done”. The respondent claims that the same can be said here because this
dispute is now eight years old. According to the respondent, any allegation
that the grievance procedure wouldn’t have been timely or expeditious does not
hold water when eight years have passed to get to this point.
[61] The
applicant’s grievance with respect his termination as trade advisor was
submitted on October 11, 1996. His grievance in relation to his harassment
complaint of October 1996, not being handled in compliance with policy was
submitted on September 3, 1997. It took seven and six years respectively to
deal with those grievances. In view of the time lines, I have difficulty with
the respondent’s position in this respect.
[62] The
respondent says that the dispute in Vaughan arose from
the employment relationship and fell squarely within the grievance process. The
same can be said here because “releases regularly occur and fall within the
grievance process”.
[63] I
have no reason to doubt the accuracy of the respondent’s statement. However,
there are comments in Vaughan that specifically
address circumstances where there are whistleblower and conflict of interest
arguments. Indeed, Mr. Justice Binnie notes, in paragraph 20, the
understandable reluctance of the courts to hold in whistleblower cases that the
only recourse is to grieve in a procedure internal to the very one the individual
blew the whistle on.
[64] Here,
the record indicates that the applicant did not intend to “blow the whistle” on
anyone. However, it is clear that his comments were perceived precisely in
that manner (regarding the Admiral) by those in attendance at the “gloves-off”
talk with the CDS (respondent’s record at p. 47).
[65] The
court concluded in Vaughan that courts should
generally decline – as a matter of discretion, except on the limited basis of
judicial review – to become involved in matters where the statutory process
provided a forum for redress. However, the court considered the matter in that
case to be “run of the mill” and an “ordinary garden variety” type of matter.
At paragraph 37, the court stated that “[i]f the facts in another case were to
disclose a more particular and individualized conflict problem (as in the
whistle-blower cases) other considerations will come into play”. Further, at
paragraph 39, in relation to the absence of independent third-party adjudication,
the court opined that this factor “may in certain circumstances impact on the
court’s exercise of its residual discretion”.
[66] The
first level grievance report in relation to “harassment” at paragraph 10
(applicant’s record at pp. 31-34) states as follows:
This case is extremely sensitive as it
deals with the very senior leadership within the Navy and the observation that
due process IAW CFAO 19-39 was not followed by staff within the then MARCOMHQ.
It also calls into question, both directly (refA) and indirectly (the manner of
the response at refJ) the issue of ethical conduct within MARPAC and MARLANT
staffs.
[67] The
correspondence from the Ombudsman dated May 20, 2005, indicates that
Alternative Dispute Resolution (ADR) process was the recommended mechanism to
address the applicant’s concerns regarding improper release as well as the
related issues concerning extension of service and benefits. The
correspondence also impliedly suggests, in my view, that the applicant consider
other alternatives. Specifically, it states:
As mentioned to you at our meeting, the
ADR process does not limit your ability to seek other avenues to address your
concerns. It would be inappropriate for me to provide you with advice on what
avenues you should be considering; I suggest that you speak to your legal
counsel regarding this issue.
[68] At
paragraphs 142 and 143 of his affidavit, the applicant states that the
Ombudsman’s office contacted him to advise that the ADR was cancelled and that
the Ombudsman was recommending that his complaint be settled. Subsequently,
the Ombudsman’s office informed him that it was encountering difficulty getting
the CF to negotiate.
[69] The
applicant was not cross examined on his affidavit. Instead, the respondent
chose to attack his credibility by contrasting his evidence with that of the
respondent’s affiants. I have not lost sight of the respondent’s evidence.
However, I do not accord it the weight that the respondent urges. For example,
I do not view the affidavit of the officer previously occupying the position at
the Director Naval Personnel Requirements (DNRP) through the same lens as the
respondent. I will have more to say about this under the “procedural fairness”
heading.
[70] The
applicant’s divisional officer’s observations (as articulated in the officer’s
affidavit) are telling. The respondent stresses that the applicant knew, or
ought to have known, that release was a realistic possibility when the CRB(M)
review was initiated. The applicant acknowledges that he knew that his
circumstances were to be reviewed by the CRB(M). However, he did not think that
release was a realistic or probable outcome.
[71] The
applicant’s divisional officer attests that it would be extremely unusual for
release proceedings [in relation to the applicant] to have been initiated
without his knowledge. Although aware of the applicant’s permanent medical
category and that his circumstances were to be reviewed by the CRB(M), the
officer deposes that compulsory release was only one of the possible outcomes
because “there is a distinction between review of a member’s career for medical
reasons and release proceedings” (para. 25 of affidavit). This corroborates
the applicant’s position.
[72] In
the same breath, the applicant’s divisional officer states that although the
applicant’s 1996/97 personal evaluation form (PER) makes “no mention of release
only that the CRB would change his medial category… in my [the divisional
officer’s] experience a Chief Petty Officer with years of service and
experience of the applicant would understand what a CRB(M) was and that a
possible outcome of such a review could be compulsory release for medical
reasons” (para. 18).
[73] With
all due respect, it seems to me that the applicant’s divisional officer has
missed the applicant’s point. When the applicant went to sign his 1997 PER –
which the divisional officer deposes that he (the divisional officer) prepared
and then witnessed when the applicant signed in his presence and the presence
of the Commandant on June 30, 1997 – there was no reference in the PER that
less than two months earlier (May 2, 1997) the Commandant had recommended
medical release on the applicant’s CF 2088 form. Because of the Commandant’s
recommendation (unbeknownst to the applicant) the more serious consequence of
the CRB(M) hearing – that the applicant could be medically released – was a
very realistic possibility. Thus, although it is true that a CRB(M) hearing
could result in a number of potential outcomes, the applicant asks how likely
would that be when the Commandant had recommended medical release? Until the
applicant obtained disclosure of the documentation, he was not aware that the
Commandant had made such a recommendation (the applicant executed the CF 2088
before the Commandant recommended the release on the same form, on May 2,
1997).
[74] Moreover,
I regard the divisional officer’s comments at paragraph 17 of his affidavit
with scepticism. He states that the PER of 1997 unlike the PER of 1996
mentions “factors outside the control of both [the applicant] and CFSSE [the Fleet School]”. By the
time this PER was completed, “we had finally received a CF 2088 form, updating
the applicant’s permanent medical category reflecting his actual medical
limitations. Even then, this PER reflects our attempts at the Fleet School to
accommodate the applicant. We chose to not make overt reference to a ‘medical’
condition out of consideration for the applicant”.
[75] By
June 20, 1997, the applicant ought to have been apprised of the Commandant’s
recommendation for medical release. The NDHQ message sent on July 3, 1997
indicates that the CRB(M) disclosure was sent to CFB Esquimalt on May 20,
1997. The divisional officer’s justification for the vagueness of the comments
in the 1997 PER is suspect because, at that point (had the CRB(M) disclosure
been made) everyone present should have been aware that the applicant had been
recommended for medical release. There would have been no need for such
“consideration”.
[76] At
the end of the day, the question why the applicant’s divisional officer (and
assisting officer on two of the applicant’s grievances) would think that
compulsory release was only “one of the possible outcomes” looms large. In my
view, it is more probable that the applicant’s superiors knew that the
applicant had been recommended for medical release, but chose not to disclose
it to the applicant. Rather, the preferred course was to allow the applicant to
think that the CRB(M) hearing could result in a number of possible outcomes.
In paragraph 26 of his affidavit, the officer states that he learned “in
September of 1997 that a CRB(M) was held for the applicant on September 11th”.
He goes on to explain that compulsory release cannot commence until such a
decision is made.
[77] Again,
the divisional officer misconstrues the substance of the applicant’s position
that disclosure of the CRB(M) proceeding was effected through the chain of
command (respondent’s record at pp. 202-203). It is doubtful that the
divisional officer would not have been aware that the Commandant had
recommended release on May 2, 1997.
[78] The
legislation required the grievance process to proceed through the chain of
command. When regard is had to the totality of the circumstances in this
matter, in my view, it falls squarely within the special circumstances
envisioned in Vaughan. More importantly, for
the reasons set out above, it does not fall within the context that was present
in Anderson.
Additionally, I do not overlook the fact that a judge of this court granted the
applicant an extension of time within which to apply for judicial
review. The criteria articulated in Canada (Attorney
General)
v. Hennelly (1999), 244 N.R. 399 (F.C.A.) would have been considered.
[79] Consequently,
I conclude, as in Hawco, that it appears that failure to pursue a
grievance “can hardly be attributed to the applicant, except in the most formal
sense”. In the circumstances, I am not prepared to dismiss the application on
the basis that an alternative remedy existed. The remedy does not exist now.
It is in the interests of justice to the parties that the most expeditious
disposition of the matter be effected. The applicant cannot grieve the medical
release decision. ADR possibilities have not materialized. The most
expeditious route is to entertain the application for judicial review.
[80] The
circumstances in this case are not routine and are certainly not of the “garden
variety”. The facts before me are such that it constitutes an exception to the
general rule. The applicant is entitled to a decision in relation to his
application for judicial review in spite of the fact that, technically, he did
not pursue the internal grievance mechanism.
Procedural
Fairness
[81] The
applicant acknowledges that he was aware that the CRB(M) was going to be
reviewing his medical classification. However, he claims that he was not
notified of the hearing date and did not receive the CRB(M) disclosure
package.
[82] The
importance of the disclosure is underscored in the NDHQ correspondence from the
former DCPA dated May 20, 1997. There, the DCPA stated that, to ensure that
the process “is open and fair”, the member was to be notified of the CRB(M) and
be provided with “all the material that the Board will use in reaching its
decision”. The correspondence further indicated that the member “has the right
to provide to the Board any written representation or any other material which
the member feels would assist the Board in reaching a just recommendation”.
[83] The
applicant, throughout his affidavit, insists that he did not receive the
disclosure package (applicant’s affidavit at paras. 66, 69, 74, 81, 82, 83, 91,
103, 104, 105, 110, 118, 121, 137, 144, 146). I repeat myself. The respondent
did not cross-examine the applicant. Rather, the respondent attempted to
undermine the applicant’s credibility by pointing to inconsistencies between
the evidence of the applicant and that of the DGCFGA. In my view, the
inconsistencies are not material. There is no dispute that there was
communication between the applicant and the DGFGA. The debate centers on the
content of their discussion and specifically on the issue of “compensation”.
It appears to be more a question of interpretation or miscommunication than
credibility.
[84] The
only evidence that can be said to be contradictory to that of the applicant is
the Deputy Commandant’s. A message dated and forwarded to NDHQ on July 8,
1997, is stated to be from the Deputy Commandant. That message indicated that
the letter and contents (the disclosure package) were transmitted to the member
and the “member will not be responding”.
[85] The
affidavit of the Deputy Commandant, sworn for purposes of this proceeding,
indicates that he does not have actual recollection of sending the message. He
states that, based upon his limited recollection, he does not believe that he
personally provided the applicant with the documents. The officer then states,
“[h]owever, had I sent the message…I would not have done so without
confirming the information contained therein” (my emphasis).
[86] The
applicant, on the other hand, explains that when his efforts to obtain the
documents through the divisional system failed and he had not received them
before his release, he persisted in his efforts to obtain them. He submitted
an access to information request, contacted the CDS office and sought the
release of the documents from the Ombudsman’s office. As noted earlier, the
correspondence from the Ombudsman’s office supports the applicant’s position.
[87] I
cannot fathom that the applicant would steadfastly continue his pursuit of the
documentation if it had been disclosed to him. In the circumstances, I attach
very little weight to the equivocal recollection of the Deputy Commandant and
find, as a fact, that the applicant did not receive notification of the date of
the CRB(M) hearing nor did he receive the disclosure package to which he was
entitled.
[88] Counsel
for the respondent candidly and appropriately conceded that if I were to find
that the applicant did not receive notice of the hearing and disclosure, then
the case for breach of procedural fairness would be made out. In the written
submissions, the respondent argued that even if a breach of procedural fairness
did occur, the result would have been the same in any event because of the
universality of service principle.
[89] To
his credit, the respondent’s counsel did not strenuously push this position at
the hearing. Therefore, it is not necessary to review the universality of
service principle that is provided for in subsection 33(1) of the NDA. The
respondent’s counsel agreed that had disclosure been made, the applicant, if he
chose, could have obtained an independent medical assessment and presented it
to the CRB(M). More importantly, the applicant could have addressed the
“recommended for retention” categories that enable the CF, in its discretion,
to depart from the default position (release for violation of the universality
of service principle). I believe that it is fair to assume, given the
applicant’s demonstrated conviction and tenacity, that he would have elected to
make written representations to the CRB(M).
[90] Thus,
while I am unable to conclude, had disclosure been made, that the result of the
CRB(M) review would have been different, neither can I conclude that it would
not have been. Either way, I would be speculating.
[91] The
applicant was entitled to a fair hearing. That did not happen. There was a
breach of procedural fairness and the matter must be remitted to the CRB(M) for
determination in accordance
with the rules of procedural fairness. In
view of my conclusion, I need not address the arguments regarding the merits of
the CRB(M) decision.
[92] The applicant’s requests for re-enrolment in the CF, pay and associated
benefits are beyond the jurisdiction of the court on judicial review. Costs
are not awarded to self-represented litigants. However, the applicant is
entitled to his taxable disbursements.
ORDER
THIS
COURT ORDERS THAT the application for judicial review is allowed
and the matter is remitted for determination before a differently constituted
Career Review Board (Medical). The applicant is entitled to taxable
disbursements.
“Carolyn
Layden-Stevenson”
SCHEDULE “A”
to
the
Reasons
for order dated April 13, 2007
in
WILLIAM DAVID GERARD JONES and
ATTORNEY GENERAL OF CANADA
ADR Alternative
Dispute Resolution
BFOR bona fide
occupational requirement
CDS Chief of the
Defence Staff
CF Canadian
Forces
CFAOs Canadian Forces
Administrative Orders
CFB Canadian
Forces Base
CFFS Canadian Forces Fleet School
CF
2033 Canadian
Forces Medical Examination
CF 2088 Canadian Forces
Notification of Change of Medical Category or Employment Limitation
CPO1 Chief Petty
Officer First Class
CRB(M) Career Review Board
(Medical)
DGCFGA Director of the
Canadian Forces Grievance Administration
DNPR Director of Naval
Personnel Requirements
DPCA Director of
Personnel Career Administration
NDA National
Defence Act
NDHQ National Defence
Headquarters
NDMC National Defence
Medical Centre
OR&Os Queen’s Regulations and Orders
RWR retained with
restrictions
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