Date: 20080718
Docket: T-1184-05
Citation: 2008 FC 886
Ottawa, Ontario, July 18, 2008
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
ROGER
JOHN DOCKSTADER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
AMENDED REASONS FOR JUDGMENT
AND JUDGMENT
AMENDING THE
STYLE OF CAUSE
[1]
The
Applicant was a member of the Cadet Instructor Cadre of the Canadian Forces and
was a Major and the Commanding Officer (CO) of 800 Black Forest Air Cadet
Squadron in Mississauga (the
Squadron).
[2]
This
application is for judicial review of the Chief of Defence Staff’s (CDS) decision
of May 31, 2005 (the CDS Decision) dismissing the Applicant’s grievances with
respect to two decisions made by his Regional Cadet Officer (RCO).
[3]
The
first was the RCO’s decision of March 9, 2001, to relieve the Applicant of
his military duties pending the outcome of a Canadian Forces National
Investigation Service (NIS) Investigation (the Investigation). The grievance of
this decision was filed on March 20, 2001 and it alleged inter alia
that the Applicant was not given reasons for the decision or an opportunity to
make representations in accordance with Queen’s Regulations and Orders for
the Canadian Forces, subsection 101.08(5).
[4]
The
second decision was the RCO’s refusal on October 31, 2001 to return the
Applicant to active duty as CO of the Squadron, offering him instead the
opportunity to resign voluntarily or be transferred to the Supplementary
Reserve.
THE INVESTIGATION
[5]
The
Investigation began in early March 2001 and the report thereon (the NIS Report)
was dated August 24, 2001. The Investigation was prompted, in part, by a complaint
about a sexual assault made by a female cadet who was a minor at the time of
the alleged incident. However, the NIS recommended no action
because the complainant was not prepared to proceed.
[6]
The
NIS also
considered a complaint which alleged that the Applicant had not dealt
appropriately with a cadet’s accusations against another officer. However, that
complainant also elected not to proceed with her complaint so no action was
recommended.
[7]
In
addition, the Investigation dealt with allegations of fraud in the amount of
approximately $4000.00 resulting from forged requests for reimbursement for
meal expenditures claimed in connection with three cadet outings (an annual
inspection, a ski trip and a gliding trip). The NIS interviewed
thirty-two cadets with the following results: thirty denied that their apparent
signatures on meal claims submitted after the inspection outing were actually
their signatures, seventeen similar denials were made regarding meal claims on the
ski trip and six denials were made with respect to the gliding trip.
[8]
As
well, names of cadets who had not yet joined the Squadron appeared as
signatures on the claims for meals during the annual inspection and numerous
cadets named in the meal claims said that they had not participated in the
outings.
[9]
Accordingly,
the NIS was able to
conclude that fraud by forgery had occurred while the Applicant was CO.
However, although the Applicant was a suspect, the NIS did not have
sufficient evidence to reach a conclusion about the identity of the guilty
party. On the advice of counsel, the Applicant refused to speak to the NIS
investigators and although several witnesses said that a Captain Rulton had
been responsible for the meal claims, he was deceased by the time of the
Investigation.
[10]
For
all these reasons, NIS concluded that there was insufficient evidence
to lay charges.
[11]
While
the Investigation was underway and while the Applicant was relieved of his duties,
a new CO was appointed for the Squadron and given a four-year term (the New
CO). He began to serve sometime in August of 2001 and was an immediate success
in his new role. This is reflected in the letter from the Squadron Sponsoring
Committee (the Sponsors) of December 18, 2001 which indicated that its
initial support for the Applicant had “fully eroded” after waning for some
time. The Sponsors included Legion members and cadets’ parents.
[12]
The
reality was that, by the time the NIS Report was released, the Applicant’s
position as CO of the Squadron was occupied by the New CO. Even if the
Applicant had been returned to active duty, his assignment would have changed.
However, the RCO had decided that he would not return to active duty with
cadets.
[13]
In
an email dated September 28, 2001, (the Email) the RCO said the
following about the Applicant’s prospects after the NIS Report was released:
As to ref B, I will be meeting with MGen
Daigle and the JAG probably next week and, the plan is for the Gen to reinstate
Maj Dockstater. However, I want to ensure that the Major does not have a
job opportunity with cadets anymore. As to the financial review it will be
conducted by CFRETS HQ staff.
[14]
On
October 12, 2001, the Applicant was sent a letter by the Commander Canadian
Forces Recruiting, Education and Training System advising that his relief from
the performance of military duty was cancelled. This meant he was available to
return to duty. However, by letter dated October 31, 2001, the RCO advised
the Applicant that he would not be returned to duty. He said in part:
The investigation conducted by the
Canadian Forces Investigative Service (CFNIS) … into various allegations,
determined that there was insufficient evidence to support any formal charges
being laid against you. Accordingly, at Ref A [Comd CFRETS letter of
October 12, 2001] your relief from military duty was rescinded.
However, in considering all aspects of
the issues involved, it is evident that during your tenure of command of 800 RC
(Air) CS, nominal rolls were submitted with forged signatures. This together
with other aspects of your performance, demeanour and sense of responsibility
as a Commanding Officer have undermined the reputation of the cadet movement. I
find these shortcomings to be inconsistent with those required of a senior CIC
officer in a position of trust and authority.
My paramount concern is the safety and
well being of the cadets and to ensure that all participants in the cadet
programme, both civilian and military, have total confidence in all officers
appointed to positions of responsibility and control. With these concerns
foremost in my mind, I must advise you that currently there is no suitable
position to which you may be appointed and that this situation will exist for
an indefinite period.
[emphasis added by Grievance
Board]
[15]
In
my view, this decision conveyed that the Applicant would never be considered
for a position with the Squadron or any other cadet corps.
[16]
The
RCO also gave the Applicant a choice – he could take his release or transfer to
the Supplementary Reserve. Eventually, the Applicant took the transfer.
THE GRIEVANCE BOARD
[17]
The
Grievance Board (the Board) concluded in its decision of March 29, 2005
that when he was relieved of duty in March 2001, the Applicant was told that the
Investigation was underway but was not given any notice of the nature of the
allegations against him. This breached the requirements of procedural fairness which
required as a minimum, notice of intention to remove the Applicant from
command, disclosure of the information relied on and time to respond.
[18]
However,
the Board found that the decision to relieve the Applicant of duty in the face
of the Investigation was reasonable because the allegations were serious and
the welfare of cadets had to be considered.
[19]
Further
the Board concluded that, when the Applicant was denied the opportunity to
return to duty after his suspension was lifted, the RCO unfairly failed to
disclose several other allegations that he considered when he made his decision
and that the RCO’s decision was not supported by any evidence. The Board recommended
that efforts be made to return the Applicant to active duty.
THE CDS DECISION
[20]
The
Board’s findings and recommendations were not binding on the CDS and, in this
case, they were disregarded in part.
[21]
The
CDS agreed with the Board that the RCO’s initial decision to relieve the
Applicant from duty was reasonable and he did not comment on the Board’s
conclusion that the failure to disclose the allegations being investigated in a
timely manner had been unfair.
[22]
With
regard to the RCO’s second decision, the CDS disagreed with the Board. He said
that the RCO was entitled to refuse to return the Applicant to duty as CO of
the Squadron but that he should have notified him of all his reasons.
[23]
The
CDS Decision concluded on this topic as follows:
… I am also satisfied that despite the
procedural errors made by the RCO when he decided not to return you to your
position as CO 800 Sqn, there is no other decision that could have been made given
the fraudulent activity under your command, your decision not to assist the
investigation into the fraud and the lack of confidence of the sponsoring
committee.
[24]
I
note here that the CDS Decision did not address the broader aspects of the
RCO’s second decision – that in addition to not returning to the Squadron, the
Applicant would never again serve as an officer in a Cadet squadron.
[25]
The
CDS Decision also mentioned that the Applicant’s failure to assist the NIS during the
Investigation on the advice of his lawyer was a matter that the RCO was
entitled to consider in reaching his decision not to return the Applicant to
active duty.
[26]
Lastly,
the CDS Decision criticized the Applicant for failing to assist the Canadian
Forces by commenting on the fraud after the Investigation had been closed. This
opportunity presented itself on July 14, 2004 when the Board disclosed the NIS
Report to the Applicant. However, he twice declined to make submissions when
asked by the Board and also declined in the course of the review by the CDS.
MATTERS NOT IN ISSUE
[27]
There
is no issue that there was widespread forgery of signatures on meal claims (the
Fraud) and that this Fraud occurred while the Applicant was in command of the
Squadron. There is also no issue that the Applicant was responsible to ensure that
the financial administration of the Squadron was conducted in an ethical manner.
[28]
Further,
there is no issue that the cadet program is a joint venture between the
Department of National Defence and the Sponsors and that a CO cannot function
effectively without the Sponsors’ support.
THE ISSUES
[29]
The
Applicant abandoned his constitutional arguments during submissions.
[30]
The
remaining issues were whether:
1.
The
CDS erred in not considering the impact of two periods of delay on the
Applicant.
2.
The
CDS erred in failing to refer to the RCO’s email of September
28, 2001.
3.
The
CDS erred when it drew an adverse inference based on the Applicant’s failure to
assist NIS and the
Canadian Forces in their efforts to identify the person responsible for the Fraud.
STANDARD OF REVIEW
[31]
As
a starting point, it is necessary to characterize the issues. In my view, the
first two issues relate to procedural fairness and the third raises questions
of law.
[32]
Procedural
fairness issues do not attract deference. Further, the particular questions of
law in the case are sufficiently outside the specialized area of expertise of
the CDS to warrant the application of correctness as the standard of review (see
Dunsmuir v. New Brunswick, 2008 SCC 9 at
paragraph 55).
[33]
In
reaching this conclusion, I am mindful of the Respondent’s submission that the
questions in Issue 3 are mixed questions of law and fact which, according to
the comprehensive analysis undertaken by Madam Justice Layden-Stevenson in Armstrong
v. Canada (Attorney General), 2006 FC 505 should be reviewed on a standard
of reasonableness. While I agree with her conclusions in that case, I do not
accept the Respondent’s submission about the nature of Issue 3. In my view,
there is no factual component in Issue 3. The evidence that the Applicant never
helped NIS or the
Canadian Forces identify the forger was uncontradicted.
DISCUSSION
Issue 1
[34]
The
first delay is said to be the period between the release of the NIS Report on
August 28, 2001 and the RCO’s decision of October 31, 2001 not to
return the Applicant to duty. The submission is that the delay was prejudicial
because, if the RCO had acted immediately after the NIS Report was issued, he could
have returned he to duty as CO of the Squadron in early September at a time
when he still would have had the Sponsors’ support.
[35]
In
my view, this submission is not persuasive for two reasons. First, by
August 28, 2001, the New CO had assumed command of the Squadron for a
four-year term. There was no position open as CO of the Squadron in early
September. Further, the Applicant took no issue with the propriety of the
appointment of the New CO. He did suggest in oral submissions that perhaps the New
CO should have been appointed on an “acting” basis but I was shown no authority
to indicate that an officer who is relieved of duty can only be replaced by an
officer in an “acting” position.
[36]
Further,
had the CO’s position been open, there is no clear evidence to suggest what the
Sponsors’ attitude to the Applicant’s return as CO would have been at the end
of August 2001. It is true, as the Applicant suggests, that the Sponsors would
have had less time to become enthusiastic about the New CO but I am not
prepared to assume that they would have supported the Applicant particularly as
their letter of December 18, 2001 said that support for him had been “waning”
for some time.
[37]
The
second period of delay ran from March 2001 when the first grievance was filed
until March 29, 2005 when the Board issued its decision. The evidence shows
that the Board had an 800 case backlog at the time and that it decided its cases
in the order in which grievances were received. This administrative delay was
most unfortunate but it was not unfair in the legal sense in the absence of evidence
of prejudice.
[38]
In
Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000]
2 S.C.R. 307 at paragraph 121, the Supreme Court of Canada noted that, in cases
of administrative delay, prejudice means that a party’s ability to receive a
fair hearing is somehow compromised. There is no evidence of such prejudice in
this case.
[39]
For
these reasons, I have concluded that the delays described above did not amount
to breaches of the requirements of procedural fairness and that the CDS
therefore did not err in failing to consider their impact.
Issue 2 The
Email
[40]
The
Board referred to the Email of September 28, 2001 in which the RCO said that he
did not want the Applicant returned to duty with cadets. However, as the
Applicant submits, the CDS did not refer to the Email. This oversight reveals a
serious defect in the CDS Decision. It focused on whether the Applicant could
return as CO of the Squadron but did not deal with what amounted to a permanent
refusal to return the Applicant to any active duty with cadets in any location.
This decision effectively ended the Applicant’s career as a cadet instructor.
[41]
In
view of the language of the Email and of the letter of October 31,
2001
quoted above, it was not open to the CDS to say:
Similar to other cadet corps COs who
complete their term as CO, other employment opportunities for you were
extremely limited. The RCO indicated this in his letter to you, and stated that
there was no suitable position available for you at the time or for the
foreseeable future. Without a position in which to be employed, you were,
as in the case of other Cos, required to transfer to the Supp Res or to take
your release.
As a member of the Supp Res, you remain
eligible to apply for a transfer back to the Cadet Instructor’s List (CIL) or
to another subcomponent of the Reserve Force whenever an appropriate vacancy
becomes available.
[my emphasis]
[42]
This
statement ignored the RCO’s actual language. He spoke of there being no
suitable position for an “indefinite period” not for the “foreseeable future”
and, in view of the Email, there was absolutely no prospect that the Applicant
could successfully apply for a transfer from the Supplementary Reserve to a
position as a cadet instructor.
Issue 3 Failure
to Provide Assistance in Uncovering the Reason for the Fraud
3(a) The
Investigation
[43]
Counsel
for the Respondent agreed that the CDS erred when he concluded that the RCO was
entitled to draw an adverse inference from the Applicant’s exercise of his
right to remain silent during the Investigation.
3(b) The
Post Investigation Situation
[44]
However,
the Respondent says that the Applicant’s right to silence ended when the
Investigation closed and that the CDS correctly concluded that the RCO was
entitled to draw an adverse inference when the Applicant failed to comment on
the Fraud when asked to do so by the Board and the CDS.
[45]
This
submission relies on a series of awards made by arbitrators in the employment
law context in which they concluded that, in the face of prima facie
evidence of wrong doing, an employee bears an onus to assist his employer’s
investigation.
[46]
Transposed
to this case, this proposition would mean that, once the NIS closed its Investigation,
the Applicant became obliged to assist the Canadian Forces in their efforts to
identify the person who committed the Fraud.
[47]
The
problem with this submission is that if the Applicant cooperated and, for
example, confessed to having forged the meal claims, there would have been no
bar to NIS reopening
its Investigation and recommending criminal charges. In such circumstances, the
right to silence would be rendered meaningless. For this reason, I have
concluded that the CDS erred in law when he drew an adverse inference based on
the Applicant’s failure to assist once the Investigation was complete.
JUDGMENT
FOR ALL THESE REASONS, THIS
COURT ORDERS AND ADJUDGES that:
·
The
application is allowed with costs.
·
The
CDS’s Decision is hereby quashed and the matter is referred back for
reconsideration.
·
In
the reconsideration, the CDS is directed to consider, inter alia, the
propriety of the RCO’s decision to end the Applicant’s career as a cadet
instructor and is directed to disregard the Applicant’s failure to cooperate
with the Investigation and subsequent inquiries by the Canadian Forces, the
Board and the CDS about the Fraud.
“Sandra
J. Simpson”
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