Date: 20080214
Docket: T-1183-07
Citation: 2008 FC 190
Ottawa, Ontario, February 14,
2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
LEADING
SEAMAN D.M. MORPHY (RET'D)
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Leading Seaman David M. Morphy (ret’d) seeks judicial review of a decision of the Chief of Defence
Staff dismissing his grievance regarding the quality of the medical care that
he received while a member of the Canadian Forces.
[2]
Leading Seaman Morphy asserts that in dismissing
his grievance, the Chief of Defence Staff erred in failing to provide reasons
for disagreeing with the findings and recommendations of the Canadian Forces
Grievance Board.
[3]
The Chief of Defence Staff further erred,
Leading Seaman Morphy contends, by ignoring evidence, and by relying on
demonstrably unreliable evidence.
[4]
Finally, Leading Seaman Morphy submits that the
Chief of Defence Staff acted in a procedurally unfair manner by relying on
medical evidence obtained by the Director General Canadian Forces Grievance
Authority, without first submitting that evidence to be considered by the
Canadian Forces Grievance Board.
[5]
For the reasons that follow, I find that the
Chief of Defence Staff did not provide reasons for disagreeing with key findings
made by the Canadian Forces Grievance Board, as required by the National
Defence Act. As a consequence, the application for judicial review will be
allowed.
Background
[6]
In 1983, Leading Seaman Morphy enlisted in the
Canadian Navy as a Supply Technician in the Canadian Forces Logistics Branch.
In the summer of 1985, he injured his back while participating in compulsory
training. He subsequently aggravated the injury during a fitness test a few
weeks later. Leading Seaman Morphy then sought medical assistance from
Canadian Forces medical personnel, who subsequently diagnosed him as suffering
from “muscle strain lumbar spine”.
[7]
Leading Seaman Morphy continued to suffer
difficulties as a consequence of his back injury, leading him to seek medical
assistance from time to time over the next several years.
[8]
In March of 1990, while he was stationed in Germany, Leading Seaman Morphy once again
sought medical attention for his back problems. At this time, Canadian Forces
medical personnel ordered that he undergo a bone scan and an x-ray to determine
whether he was suffering from bilateral spondylolysis.
[9]
The bone scan was conducted by Dr. Merette, who
was a Canadian Forces doctor. Dr. Merette’s report noted that he was not
trained to interpret the results of the test. However, he went on to say that
he saw no sign of significant capitation over the lower spine.
[10]
At this time, Leading Seaman Morphy was also
referred to a German radiologist by the name of Dr. Christian Gospos, who saw him
on April 12, 1990. Upon his review of Leading Seaman Morphy’s bone scan, Dr.
Gospos recommended that he receive a CAT scan of the lower lumbar spine.
[11]
A CAT scan was not carried out in 1990,
evidently because Leading Seaman Morphy’s back pain had since abated. He was
not aware at this time that a CAT scan had been recommended by Dr. Gospos.
[12]
Leading Seaman Morphy returned to Canada in the spring of 1993. He continued
to experience lower back pain, and again sought the assistance of Canadian
Forces medical personnel from time to time.
[13]
According to the Forces’ medical records, in
April of 1993, Leading Seaman Morphy was seen by a doctor with respect to his
ongoing back pain. The doctor ordered that his spine be
x-rayed. Although
the doctor noted that a CAT scan had been ordered in 1990 and had never been
carried out, the doctor did not order that a CAT scan be performed at that
time.
[14]
Leading Seaman Morphy sought medical assistance
from Canadian Forces medical personnel for his back pain in the fall of 1993,
again in 1994, and in early 1998. At no time was a CAT scan performed.
[15]
In July of 1998, he was again experiencing
problems with his back. He was seen on a regular basis by Canadian Forces
doctors between July and November of 1998, and also received intensive
physiotherapy.
[16]
Around this time, Leading Seaman Morphy
submitted an Access to Information request for his medical records. It was
only when he received his records from the Canadian Forces that he discovered
that Dr. Gospos had recommended that he undergo a CAT scan in 1990.
[17]
Leading Seaman Morphy then asked his Canadian
Forces doctor that a CAT scan be completed. He was subsequently referred to an
orthopaedic specialist, who ordered a “CT myelogram (CAT)” of his lumbar spine.
[18]
A CAT scan was performed in December of 1998.
The scan indicated an “annular bulging of the L4-5 intervertebral disc”, and
moderate to severe stenosis at the L4-5 level.
[19]
As a result of this diagnosis, on January 6,
2000, Leading Seaman Morphy underwent spinal fusion surgery.
[20]
On November 9, 2000, while he was recovering
from the surgery, Leading Seaman Morphy was promoted to Master Seaman.
However, the promotion was deferred by his Commanding Officer, as he had been
determined to be temporarily medically unfit.
[21]
Leading Seaman Morphy was subsequently found to
be suffering from a permanent incapacity, and as a result, was released from
the Canadian military on January 16, 2002.
Leading Seaman
Morphy’s Grievance
[22]
On July 12, 2002, Leading Seaman Morphy
submitted a grievance to his Commanding Officer in which he alleged that
medical authorities under the employ of the Canadian Forces failed to provide
him with “proper and timely medical care”. He alleged that this had caused him
pain and hurt, diminished his physical capabilities, caused him to lose career
opportunities, income, and downstream annuity benefits, and had resulted in his
premature release from the Canadian Forces.
[23]
Leading Seaman Morphy’s grievance is a lengthy
document. However, he summarizes the essence of his grievance in the following
terms:
Aggrieved by
a series of decisions and/or acts of omission by the C.F. medical authorities
from as early as 1985 to the date of my surgical operation in 2000, for which
no other process for redress is provided under the National Defence Act,
I grieve the fact that the said C.F. medical authorities failed to provide me
with proper and timely medical care as it was their duty to do and my
entitlement to receive and, in so failing caused me physical pain, over an extended
period; impaired my quality of life; and, contributed to the loss of
significant career opportunities with attendant loss of income and downstream
annuity benefits culminating with a premature release from the Canadian Forces
in July 2002 causing me additional economic losses.
[24]
By way of relief, Leading Seaman Morphy sought a
declaration that Canadian Forces medical authorities had not provided him with
proper medical care. In addition, he sought an apology from the Chief of
Defence Staff, and asked that a promotion board reassess his performance for
the period between 1990 and 1998, so as to determine the impact that his
handicap had on his performance and potential for promotion during that time.
He also sought financial compensation for his pain and injuries.
The Treatment
of Leading Seaman Morphy’s Grievance
[25]
The National Defence Act and the Queen’s
Regulations & Orders for the Canadian Forces set out the procedures to
be followed in relation to grievances filed by members of the Canadian Forces.
The relevant provisions of the legislation are set out in an appendix to this
decision.
[26]
In accordance with these procedures, a grievance
is to be decided first by an “initial authority”. Where the redress sought by
a grievor is not afforded by the initial authority, he or she may then submit
the grievance to the Chief of Defence Staff for consideration and
determination.
[27]
Where, however, a grievance relates to “the
entitlement to medical or dental care”, article 7.12(1)(d) of the Queen’s
Regulations & Orders provides that the Chief of Defence Staff must
first refer the grievance to the Canadian Forces Grievance Board (CFGB).
[28]
In accordance with these procedures, Leading
Seaman Morphy’s Commanding Officer forwarded the grievance to the Director
General Health Services (DGHS), as the Initial Authority. On December 16,
2002, the DGHS found that Leading Seaman Morphy had received “proper and timely
health care consistent with [his] medical condition.”
[29]
Specifically, the DGHS noted that in 1990, the
notation “Asx”, meaning “asymptomatic”, had been recorded on the file copy of
Leading Seaman Morphy’s bone scan. The DGHS was of the view that this meant
that Leading Seaman Morphy’s medical condition had been assessed, and the fact
that he had become asymptomatic suggested that a CAT scan was not appropriate
at the time.
[30]
The DGHS also observed that Leading Seaman
Morphy had not sought treatment for his back injury for three years after the
CAT scan was originally recommended. Moreover, in 1998, the specialists with
whom Leading Seaman Morphy had consulted noted that he had been receiving
excellent treatment, and that despite his successful surgery, he continued to
suffer from some back pain.
[31]
Dissatisfied with this decision, Leading Seaman
Morphy then requested that his grievance be forwarded to the Chief of Defence
Staff. However, as the grievance related to medical treatment, it was instead
referred to the CFGB, in accordance with Chapter 7, article 7.12 of the Queen’s
Regulations & Orders for the Canadian Forces.
[32]
In accordance with section 29.2 of the National
Defence Act and article 7.13 of the Queen’s Regulations & Orders,
the mandate of the CFGB is to provide findings and recommendations to
the Chief of Defence Staff and the grievor.
[33]
On April 28, 2006, the CFGB concluded that
“given that the grievor’s medical chart contained the specialist’s
recommendation for a CAT scan, it is reasonable to conclude that the prudent
course of action would have been to proceed with the CAT scan in 1990.”
[34]
The Board further found that the notation
indicating that Leading Seaman Morphy was asymptomatic had been improperly
attributed to Dr. Gospos by the DGHS, and that, in any event, in the eight
years following his notation, no Canadian Forces medical doctor ever saw fit to
act upon the recommendation.
[35]
As a consequence, the failure of the Canadian
Forces to act on Dr. Gospos’ recommendation, coupled with Dr. Merette’s 1990
notation that he was not trained to review Leading Seaman Morphy’s bone scan, led
the Board to conclude that “due diligence was not rendered to the grievor.”
[36]
These findings, together with the fact that
Leading Seaman Morphy had for six years been highly recommended for immediate
promotion in his Personal Evaluation Reports (PERs), then led the Board to find
that “he was not promoted as a result of his back problems.”
[37]
The Board rejected a number of other allegations
raised by Leading Seaman Morphy in his grievance. In particular, the Board did
not accept that in acting as the Initial Authority reviewing Leading Seaman
Morphy’s grievance, the DGHS was biased as it was also the authority
responsible for the actions of the doctors whose conduct was being reviewed.
In the Board’s view, any concerns of bias at the first level would be mitigated
by the findings of subsequent decision makers.
[38]
Insofar as the issue of remedy was concerned,
the Board observed that section 9 of the Crown Liability and Proceedings Act
prohibited any payment being made in respect of the death, injury, damage or
loss in respect of a claim where a pension or compensation has been paid or is
payable.
[39]
As Leading Seaman Morphy had previously been
granted a lump sum payment from Veterans Affairs, the Board found that he was
prohibited from any financial compensation from the Canadian Forces.
[40]
The Board also rejected his request for an
apology. However, the Board recommended that Leading Seaman Morphy’s file be
reviewed, in order to determine the extent to which his back injury had
impaired his promotional opportunities. The Board further recommended that the
Chief of Defence Staff retroactively grant him the appropriate promotion.
[41]
On May 9, 2006, Leading Seaman Morphy was
advised that the Board’s findings and recommendations were being forwarded to
the Chief of Defence Staff for a final decision, in accordance with subsection
29.2(1) of the National Defence Act. He was subsequently invited to
make submissions in response to the Board’s report, but declined to do so.
[42]
Although the Chief of Defence Staff is the final
authority with respect to grievances of this nature, the responsibility for
reviewing grievances at the final level to ensure that all of the documentation
necessary to make a final decision is available has been delegated to the
Director General Canadian Forces Grievance Authority (“DGCFGA”).
[43]
A grievance analyst with the DGCFGA then reviewed
Leading Seaman Morphy’s file and prepared a report for the Chief of Defence
Staff, recommending that the grievance be denied.
[44]
The analyst did not agree that the Canadian
Forces had failed to provide Leading Seaman Morphy with proper medical care.
Relying on information received from the Director of Medical Policy, who had
evidently consulted with an outside specialist, the analyst found that it was
not unreasonable for Leading Seaman Morphy’s physicians to have chosen to defer
the CAT scan based on the results of his 1990 x-ray and bone scan.
[45]
Moreover, it was not clear that Leading Seaman
Morphy’s condition in 1990 was amenable to surgery, or that surgery would have
succeeded in alleviating his pain.
[46]
The analyst also concluded that the fact that an
individual received positive evaluations was not, by itself, determinative of
whether the individual would be promoted, as there were other factors taken
into consideration in this regard.
[47]
Based on a review of historical promotional
statistics, the analyst concluded that it was only in 2000 that Leading Seaman
Morphy’s scores were high enough to qualify him for promotion, at which time he
was offered the chance to participate in a Junior Leadership Course.
Completion of this course is necessary to be considered for promotion.
[48]
Leading Seaman Morphy’s counsel was provided
with a summary of the analyst’s report, and was offered the opportunity to make
submissions in response to the report.
[49]
In his submissions, Leading Seaman Morphy
objected to the jurisdiction of the DGCFGA to “re-review or reconsider a matter
raised in the grievance proceedings before remitting it to the final authority
for decision”, the “gathering and introduction of ‘fresh’ evidence and the
recasting of issues” after the conclusion of the CFGB hearings and the unlawful
intervention of the DGCFGA between the conclusions of the CFGB and the final
authority.
The Decision of
the Chief of Defence Staff
[50]
On May 10, 2007, the Chief of Defence Staff,
denied Leading Seaman Morphy’s grievance in its entirety. It is this decision
that underlies the application for judicial review.
[51]
The Chief of Defence Staff dealt first with the
allegation that the DGCFGA acted beyond its authority and jurisdiction.
Relying on Armstrong v. Canada (RCMP), [1998] F.C.J. No. 42 (F.C.A.),
he concluded that the process followed in this case was consistent with
procedural fairness and the prerogative of the adjudicative authority to be
assisted with its assessment.
[52]
The Chief of Defence Staff also rejected Leading
Seaman Morphy’s assertion that fresh medical evidence had been improperly
introduced at the final level, without having first been submitted to the CFGB
for scrutiny. In this regard, he noted that although the Board can conduct
hearings, it has no adjudicative authority, and its findings and
recommendations are not binding on the Chief of Defence Staff.
[53]
Turning to the substance of Leading Seaman
Morphy’s grievance, the Chief of Defence Staff stated that he “was not in a
position to make a finding of malpractice”. He then stated that he would
consider the allegations in Leading Seaman Morphy’s grievance “to the extent
that they might have had a bearing on your promotion, your attendance on the
PLQ [the successor to the Junior Leadership Course] and your release from the
CF.”
[54]
The Chief of Defence Staff then noted that
Leading Seaman Morphy’s grievance alleged “unskilful practice by physicians”.
Despite his earlier assertion that he was not in a position to make findings of
malpractice, he then went on to cite medical negligence jurisprudence for the
proposition that “the standard of care imposes the duty on people of
exceptional skill or knowledge to act as would a reasonable and prudent person
possessing the same or similar skills or knowledge under similar
circumstances”.
[55]
The Chief of Defence Staff then stated that in
order for him to find that Leading Seaman Morphy had been aggrieved by
deficient medical care, the burden was on Leading Seaman Morphy to persuade him
that the care that he had received did not meet the standard of care imposed on
physicians at the time in question, and that this failure “caused or directly
contributed to the medical condition at the source of [the] denial of your
promotion and your release”.
[56]
Central to the Chief of Defence Staff’s finding
that Leading Seaman Morphy had not demonstrated that the medical care that he
had received was inadequate was the following statement:
Upon review, I find that there is insufficient evidence to establish
that your physicians’ actions in 1990 failed to meet the standard of care to
which they were bound, or that a different diagnosis would have resulted in a
different outcome. I note that your EXPRES test results show that you remained
physically fit and generally healthy until 2000. While the continuity of your
care might not have proved ideal to you, based upon my reading of your
grievance, I cannot conclude that you were aggrieved in regards to the quality
of the medical care you received in 1990 nor that there exists a causal link
between that care and the medical condition resulting in employment limitations
imposed in 2000. These limitations justified denial of his promotion and
release.
[57]
The Chief of Defence Staff recognized that the
Canadian Forces Grievance Board had recommended that further investigation be
carried out, in order to determine whether Leading Seaman Morphy should have
been promoted. However, he found that a review of past merit board results for
supply technicians demonstrated that it would have been impossible for Leading
Seaman Morphy to have been promoted before 2000, as his scores were too low for
him to qualify for a promotion, given the number of supply technician positions
available in 1998 and 1999.
[58]
The Chief of Defence Staff also observed that
Leading Seaman Morphy’s selection for promotion to Acting/Lacking Master Seaman
in 2000, as well as his attendance at the PLQ course had both been deferred
because of his temporary medical condition, and that he had been released when
it was determined that his medical employment limitations were permanent in
nature. According to the Chief of Defence Staff, Leading Seaman Morphy had
failed to establish that these limitations were inappropriate, or that there
was a link between his medical condition, and the alleged shortcomings in his
medical care.
[59]
As a consequence, the Chief of Defence Staff concluded
that Leading Seaman Morphy had been treated fairly and equitably, pursuant to
the relevant policies. Moreover, as he had not been entitled to a promotion
prior to 2000, and had been medically unfit since 2000, the grievance and
requested redress were denied.
Issues
[60]
Although Leading Seaman Morphy has raised a
number of issues on this application, I am of the view that the determinative
questions are whether the Chief of Defence Staff erred in failing to properly
address the central issues raised by the grievance, and whether his reasons satisfied the requirements of
the National Defence Act.
Standard of
Review
[61]
Leading Seaman Morphy submits that the standard
of review to be applied to final level grievance decisions of the Chief of
Defence Staff is that of reasonableness, whereas the respondent says that the
decision must be reviewed on the standard of patent unreasonableness.
[62]
While an issue as to
the sufficiency of reasons will normally be characterized as a question of
procedural fairness with the result that the issue of standard of review will
not arise, in this case the questions that arise with respect to the reasons of
the Chief of Defence Staff are the extent to which the reasons addressed or
responded to the central issues raised by the grievance, and whether the
reasons satisfied the requirements of subsection
29.13(1) of the National
Defence Act. These are questions of law, and mixed fact and law. As a
consequence, it is necessary to identify the appropriate standard of review to
be applied to these aspects of the decision under review.
[63]
In order to ascertain
Parliament’s intention as to the level of deference to be accorded to a
particular decision maker, it is necessary to carry out a pragmatic and
functional analysis. In this case, a review of the factors identified by the
Supreme Court of Canada in cases such as Dr. Q. v. British Columbia College
of Physicians and Surgeons, [2003] 1 S.C.R. 226, 2003 SCC 19, discloses
that:
a) The National
Defence Act contains a privative clause that insulates decisions of Chief
of Defence Staff from review, except for judicial review in this Court. This
militates in favour of according deference to these decisions;
b) Insofar as the
purpose of the legislation in issue is concerned, in Armstrong v. Canada
(Attorney General), 2006 FC 505, aff’d 2007 FCA 157, Justice
Layden-Stevenson observed that the purpose of the National Defence Act
is to provide for the management, direction and administration of the Canadian
Forces. The grievance provisions of the Act are intended to provide for the
efficient resolution of grievances or disputes. As such, the issues are not
polycentric, but are of a private or personal nature. Justice Layden-Stevenson
concluded that this suggested that some deference should be shown to decisions
of the Chief of Defence Staff, a view with which I concur.
c) Insofar as the
expertise of the Chief of Defence Staff is concerned, Justice Layden-Stevenson
noted in Armstrong that as the most senior officer in the Canadian
Forces, the Chief of Defence Staff is charged with control and administration
of the Forces. As such, he would be conversant with all facets of the military
context, unlike the court, suggesting a high level of deference. That said,
while the promotional procedures within the Canadian Forces at issue here would
fall squarely within the expertise of the Chief of Defence Staff, to the extent
that the grievance relates to the adequacy of the medical treatment received by
Leading Seaman Morphy, this is a matter outside the expertise the Chief of
Defence Staff. This would suggest a less deferential standard of review should
be applied to this aspect of the decision.
d) The final factor is
the nature of the questions raised by the application for judicial review. As
was noted earlier, the issues here are questions of law, and mixed fact and
law, again suggesting that a less deferential standard should be applied.
[64]
Taking all of these
factors into account, I agree with Leading Seaman Morphy that the appropriate
standard of review to be applied to the decision under review is that of
reasonableness. That is, the decision must be able to withstand a “somewhat
probing examination”: Canada (Director of Investigation and Research)
v. Southam Inc., [1997] 1
S.C.R. 748.
Analysis
[65]
A review of Leading
Seaman Morphy’s grievance discloses that it related to the medical care that he
received from the Canadian Forces, not just in 1990, but for the whole period
from 1985 to 2000.
[66]
Indeed, the grievance
makes specific reference to “a series of
decisions and/or acts of omission by the C.F. medical authorities from as early
as 1985 to the date of my surgical operation in 2000”.
[67]
While the grievance
certainly reflects Leading Seaman Morphy’s preoccupation with the fact that a
CAT scan was not done in 1990, as had been recommended by Dr. Gospos, it is
clear from the wording of the grievance that his concerns also related to the
failure of Canadian Forces medical personnel to carry out the test when his
back pain continued to recur through the 1990’s.
[68]
Indeed, the operative
section of Leading Seaman Morphy’s grievance is entitled “Medical Authorities
Failed to Rely on Available Diagnostic Tools – 1990-1998”.
[69]
Moreover, paragraph 17
of the grievance states:
However, even though spondylosis was suspected in 1990 and a
CT scan of the lower lumbar spine was recommended, for the next eight years
the C.F. went on ignoring this recommendation forcing me to both continue
to live in pain and to maintain a regimen of work assignments which only added
and worsened the growing pain… [emphasis added]
[70]
The Canadian Forces
Grievance Board found that given the specialist’s recommendation that a CAT
scan be carried out, “the prudent course of action would have been to proceed
with the CAT scan in 1990”.
[71]
However, the Board then
went on to state that:
For another eight years, military
doctors with access to the grievor’s medical records, and, ergo, the
diagnosis, ignored it and did not provide him with assistance and relief
…
Clearly, the grievor’s medical doctors had a duty to ensure that he
received medical attention for the diagnosis of low back pain … in 1990. Given
that the grievor’s medical chart, which contained the specialist’s
recommendation for a CAT scan and Dr. Merette’s notations that he was not
trained to read a bone scan, and that a plain film bone scan was required were
ignored for eight years, it is evident that due diligence was not rendered to
the grievor. [emphasis added]
[72]
The Chief of Defence
Staff did not accept the Board’s finding that the medical care that Leading
Seaman Morphy had received had been inadequate. In coming to this conclusion,
he stated that “I find that there is insufficient evidence to establish that
your physicians’ actions in 1990 failed to meet the standard of care to
which they were bound, or that a different diagnosis would have resulted in a
different outcome”. [emphasis added]
[73]
The Chief of Defence
Staff then went on to say that “I cannot conclude that you were aggrieved in
regards to the quality of the medical care you received in 1990 nor
that there exists a causal link between that care and the medical condition
resulting in employment limitations imposed in 2000. [emphasis added]
[74]
Thus it is clear that
the focus of the Chief of Defence Staff’s analysis was on the failure of the
Canadian Forces to carry out a CAT scan when it was first recommended in 1990.
No consideration was given to Leading Seaman Morphy’s allegations relating to
the failure of Canadian Forces medical personnel to carry out the test when his
back pain continued to recur through the 1990’s.
[75]
Moreover, no reasons
were given by the Chief of Defence Staff for not accepting the finding of the
Canadian Forces Grievance Board that
Leading Seaman Morphy had been denied adequate medical care by reason of the
failure of Canadian Forces medical professionals to carry out the CAT scan in
the period from 1990 to 1998.
[76]
It is true that in
accordance with subsection 29.13(1) of the National Defence Act, the
Chief of Defence Staff is not bound by
any finding or recommendation made by the Canadian Forces Grievance Board.
[77]
However, subsection 29.13(2) of the National Defence Act mandates that where the Chief of Defence Staff does
not act on a finding or recommendation of the Board, he must include the
reasons for not having done so in the decision respecting the grievance.
[78]
In this case, no reasons were
provided for the decision not to accept the Board’s finding that the failure of
Canadian Forces medical personnel to carry out the CAT scan for eight years
after it was first recommended meant that Leading Seaman Morphy was not
provided with adequate medical care.
[79]
In argument, counsel for the
respondent provided detailed submissions as to why the Board’s finding in this
regard was not supported by the evidence. That may or may not be the case, but
that is not the issue. Having not acted on the Board’s finding that inadequate
medical care had been provided to Leading Seaman Morphy for the 1990-1998
period, it was incumbent on the Chief of Defence Staff to provide reasons for
rejecting the Board’s finding in this regard. This he failed to do.
[80]
The Chief of Defence Staff then
went on to find that no causal link had been established between the medical
care that Leading Seaman Morphy received in 1990, and his medical restrictions
and the employment limitations imposed in 2000, which, he found, justified the
denial of a promotion and a medical release. No consideration was given,
however to whether a causal link existed between the medical care that Leading
Seaman Morphy received between 1990 and 1998, and the career consequences that
he suffered in that period and beyond.
[81]
Moreover, while the Chief of
Defence Staff did consider whether Leading Seaman Morphy’s performance scores
were sufficient to qualify him for a promotion in 1998, 1999 and 2000, he did
not do as the CFGB recommended and consider the extent to which Leading Seaman
Morphy’s back problems had impaired his promotional opportunities. Nor did he
give any reasons for not having done so, as required by the provisions of
section 29.13(2) the National Defence Act.
Conclusion
[82]
As a consequence, the application
for judicial review is allowed, with costs.
[83]
The May 10, 2007 decision of the
Chief of Defence Staff is set aside, and the matter is remitted to the Chief of
Defence Staff to be re-determined in accordance with these reasons.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that this application for judicial review is
allowed, with costs. The May 10, 2007 decision of the Chief of Defence Staff
is set aside, and the matter is remitted to the Chief of Defence Staff to be
re-determined in accordance with these reasons.
“Anne
Mactavish”
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