Docket: T-2186-10
Citation:
2014 FC 433
Ottawa, Ontario, May 6,
2014
PRESENT: The
Honourable Mr. Justice Boivin
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BETWEEN:
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ANTHONY MOODIE
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7 of a
decision made by the Chief of the Defence Staff on November 23, 2010, wherein
he denied former Second Lieutenant Anthony Moodie’s grievance regarding his
failure of a Common Army Phase course.
1.
Factual background
[2]
The factual basis of this case dates back to
over ten (10) years ago, and it is accordingly important to set out a
chronology of the main facts.
[3]
Anthony Moodie (the applicant) was a member of
the Canadian Forces (CF) from October 1995 to October 2005. At the time of the
impugned decision, the applicant was a Second Lieutenant posted at 32 Canadian
Brigade Group, an Army Reserve Formation headquartered in Toronto, Ontario.
[4]
On September 22, 2003, the applicant started the
Common Army Phase (CAP) course 0309 at the Infantry School, Combat Training
Centre at the Canadian Forces Base Gagetown, New Brunswick. While he
successfully completed most of the required Performance Objectives (PO) of the
CAP course, the applicant was unable to complete POs 102, 103, 109 and 118.
[5]
The applicant especially struggled with PO 103 (Conduct a Reconnaissance Patrol). The applicant first failed the PO 103 on November
15, 2003. He was given an opportunity to repeat it on November 20, 2003, but
failed again. After the second failed attempt, a Progress Review Board (PRB)
was convened to assess whether to grant the applicant further attempts. The
applicant was granted a third attempt on November 24, 2003. During the third attempt,
a lack of coordination and technical difficulties outside of the applicant’s
control contributed to a new failure. Given those exceptional circumstances,
the applicant was awarded a fourth attempt, which he failed. Following the
fourth attempt, the PRB convened again and decided, on November 25, 2003, to
return the applicant to his unit as a “training failure”.
[6]
On November 28, 2003, following several
allegations made by CF members enrolled in the CAP course 0309 regarding
discrepancies in the evaluation process, the Infantry School Commandant,
Lieutenant Colonel Pearson (the Commandant), issued terms of reference for an
investigation into the course. On December 2, 2003, the CAP Standards Officer
issued a report concluding that there was no evidence of any discrepancies in
the application of course standards (Applicant’s Record at 394-396).
[7]
On December 3, 2003, the applicant filed a
complaint to the Commandant relative to the CAP course. In his complaint, the
applicant alleged that he was assessed differently than the other students,
that the staff actively sought to have him fail, and that he actually met the
course requirements on his third attempt and should have passed. The Commandant
considered the complaint as a formal redress of grievance and asked the School
Chief Standards Officer to conduct an investigation.
[8]
On December 4, 2003, the applicant added another
complaint, in which he claimed that the members of the Directing Staff (DS)
harassed him. After he was informed that his complaint did not meet the
criterion for a harassment complaint, the applicant withdrew it.
[9]
On December 10, 2003, the Commandant issued a
decision in which he found that the applicant had been treated fairly, that the
CAP 0309 instructors acted in a professional way and that he was not treated
differently than the other students (Applicant’s Record at 172-173).
[10]
Two (2) days later, on December 12, 2003, the
School’s Chief Standards Officer issued a report in which he recommended that
the applicant’s redress of grievance be denied.
[11]
The applicant disagreed with the report’s
conclusion and the handling of his complaint. He forwarded an official
application for redress of grievance to the Chief of the Defence Staff (CDS) in
March 2004. There was some delay in the processing of the applicant’s grievance
because the first Initial Authority (IA) that was appointed to determine the
issue was perceived as having a conflict of interest. On September 25, 2004, it
was finally decided that the Commander Combat Training Centre (CCTC) was the
appropriate IA (Applicant’s Record at 397; Applicant’s Record at 203-204).
[12]
The redress of grievance was filed in March 2004
and was received on October 5, 2004. On October 12, 2004, a disclosure package
was sent to the applicant containing all the documents that the IA would
consider. On November 15, 2004, the applicant submitted his written
representations and documentation (Applicant’s Record at 397; Applicant’s
Record at 205-214; Applicant’s Record at 500).
[13]
On December 1, 2004, the applicant resubmitted a
harassment complaint. In his complaint, he alleged that he was told he failed
PO 118 because of his “thick heavy accent” by one of the DS and that the same
DS allegedly assessed him in a manner inconsistent with the course standards
and that the discrepancies in the assessment were deliberately engineered to
ensure his failure of PO 103 (Applicant’s Record at 215-217).
[14]
On December 3, 2004, the IA denied the
applicant’s redress of grievance application. The IA focused on the applicant’s
main argument, namely his repeated failures of PO 103. He concluded that the
applicant failed on all his attempts and that he did not meet the PO 103 requirements on his third attempt (Applicant’s Record at 219-222).
[15]
On December 14, 2004, the Responsible Officer
(RO), the acting Commandant of the Infantry School, rejected the harassment
complaint filed by the applicant on December 1, 2004.
[16]
Unsatisfied by the decisions of the IA and the
RO, the applicant submitted a redress of grievance to the CDS for a final
adjudication of his complaints on March 31, 2005. In this grievance, the
applicant added new allegations, including that he was denied due process, that
the RO neglected to follow the relevant guidelines in assessing his claim, that
the IA and the RO collaborated in their decisions and that they refused to
address certain key issues of his complaints (Applicant’s Record at 233-245).
[17]
On August 5, 2005, the Canadian Forces Grievance
Board (CFGB) sent the complete grievance file to the applicant for review and
informed him that his grievance was being processed (Applicant’s Record at
330-337).
[18]
On June 20, 2007, the CFGB provided the
applicant with a disclosure of all the information that it would consider in
drafting its report. On July 20, 2007, the applicant sent his response to the
CFGB (Applicant’s Record at 379-386).
[19]
On July 6, 2007, the applicant initiated an
action for damages before the Federal Court based on the same events and
allegations as those considered in the grievance process, which was still
underway (Court file number T-1248-07).
[20]
On September 27, 2007, the CFGB issued its
findings and recommended that the CDS deny the applicant’s grievance. The CFGB
found, amongst other things, that the applicant failed PO 103 on his first,
second and fourth attempts. The third attempt was discarded for logistical
shortcomings. It also found that the applicant provided no evidence that he
passed PO 118, that any irregularity occurred during his CAP 0309 training or
that he was subjected to different standards than other students. It determined
that the RO, who decided to consider the applicant’s harassment complaint even
if it was submitted after the mandatory one-year delay, had the discretion to
conduct a less formal investigation after he found that the complaint had no
merit. It concluded that nothing on the record suggested that the applicant did
not fail PO 103 or that there was any bad faith in the evaluation process
(Applicant’s Record at 393-416).
[21]
On May 27, 2008, Prothonotary Milczynski issued
an order in which she struck the applicant’s Amended Statement of Claim and
dismissed with costs his action for damages on the grounds that the National
Defence Act, RSC 1985, c N-5 [NDA] and the Queen’s Regulations
and Orders for the Canadian Forces (the QR&O) establish an
exclusive statutory scheme for the resolution of service-related disputes
between members of the CF and the Federal Crown. The applicant appealed the
prothonotary’s order to this Court.
[22]
On August 12, 2008, the applicant sent written
submissions regarding the CFGB findings and recommendations to the Director
General Canadian Forces Grievance Authority for consideration by the CDS
(Applicant’s Record at 423-427). Because of the applicant’s various appeals of
proceedings before the Federal Court, processing of the applicant’s grievance
was suspended several times.
[23]
On September 18, 2008, the applicant was told
that the processing of his grievance file was suspended until the conclusion of
his action before this Court, pursuant to QR&O 7.16 (Applicant’s
Record at 551).
[24]
On November 6, 2008, Justice Mosley of this
Court dismissed the applicant’s appeal of the prothonotary’s decision (Moodie
v Canada (Minister of National Defence), 2008 FC 1233, [2008] FCJ No 1601
(QL)). The applicant appealed this decision to the Federal Court of Appeal.
[25]
On January 11, 2010, the Federal Court of Appeal
dismissed the applicant’s appeal of Justice Mosley’s decision (Moodie v Canada (Minister of National Defence), 2010 FCA 6, [2010] FCJ No 35 (QL)).
[26]
On November 23, 2010, the CDS issued his decision
and denied the applicant’s redress of grievance (Applicant’s Record at
539-554).
[27]
On December 31, 2010, the applicant filed a
notice of application for the judicial review of the CDS’s decision.
[28]
After the filing of the notice of application,
the applicant brought a motion to this Court in order to submit an access to
information request for further disclosure of documents from the respondent.
The motion was allowed and a lengthy correspondence and exchange of documents
ensued between the applicant and various entities of the respondent.
[29]
The Court now turns to the CDS decision.
2.
Impugned decision
[30]
In his decision to deny the grievance, the CDS
found that the applicant did not meet the minimum requirements to pass CAP
0309. The applicant does not argue that he failed on his first and second
attempts, but contends that he should have passed on his third and fourth
attempts.
[31]
Concerning the failed third attempt, the CDS
noted that the evidence suggests that the way the exercise was set up did not
enable the applicant to complete PO 103. PO 103 required students to conduct a
reconnaissance patrol against an occupied objective over an eight hour period.
During the applicant’s third attempt, there was no enemy due to the school’s
logistical failure. The applicant technically failed the exercise, but was
given a new attempt the next day because of these unusual circumstances. The
CDS believes that, even if there had been no problem with the set-up of the
exercise, the applicant would not have passed PO 103 because he failed to meet
5 of the 10 “leadership” requirements, which are linked to the way a trainee
conducts himself during the exercise (Applicant’s Record at 543-545).
[32]
With respect to the fourth attempt, the CDS
found that the notes of the assessors clearly show that the applicant failed
the exercise as he was “discovered” by the enemy troops and made poor strategic
and navigational choices (Applicant’s Record at 545-546).
[33]
As for the applicant’s contention that his mark
was tempered with since his assessment form initially mentioned that he passed
PO 103, but was later modified to indicate a failure, the CDS noted that there
was no evidence to corroborate the allegation and concluded that such a fraud
is unlikely (Applicant’s Record at 547-548).
[34]
Second, the CDS refused the applicant’s
contention that he met the other POs of the CAP 0309 course. The CDS noted that
the applicant was returned to his unit solely because he failed PO 103. The fact that he initially failed PO 102, 109 and 118 but may indeed have passed
them is irrelevant, since the CDS is satisfied that he did fail PO 103 and that this was a sufficient basis to return the applicant to his unit
(Applicant’s Record at 548).
[35]
Third, the CDS agrees with the CFGB report when
it concludes that the applicant’s three (3) harassment allegations do not meet
the definition of harassment. According to the Defence Administrative Orders
and Directives (DAOD) 5012-0:
Harassment is any
improper conduct by an individual that is directed at and offensive to another
person or persons in the workplace, and that the individual knew or ought
reasonably to have known would cause offence or harm.
…
Conduct involving the
proper exercise of responsibilities or authority related to the provision of
advice, the assignment of work, counseling, performance evaluation, discipline,
and other supervisory/leadership functions does not constitute harassment. …
[Italics
in the original.]
[36]
The first allegation is that the assessor for PO 118 indicated verbally to the applicant that he had a “thick heavy accent and as such
the candidates could not understand [him]”. The CDS determined that noting
communication deficiencies is part of a proper evaluation. The second
allegation is that the applicant was treated differently than other student by
two (2) DS who held him to higher standards, fabricated and exaggerated his
deficiencies, and gave him unfavourable “leadership chits” without
justification. The CDS found that the evidence does not show that the chits
were given “without justification” or that the applicant was treated any
differently than other students. The third allegation is that, during his third
attempt, the assessor deliberately attempted to fail the applicant and that his
platoon commander subjected him to a different standard. The CDS concluded
that, since the applicant was afforded a fourth attempt due to the technical
problems encountered in the third attempt, any problem arising from this
attempt has been resolved. The CDS added that the applicant adduced
insufficient information on which the RO could have investigated and that he
therefore did not establish that his case met the requirements for harassment
(Applicant’s Record at 548-549)
[37]
Fourth, the CDS dismissed the applicant’s
contention that procedural fairness was breached by undue delays and
insufficient disclosure of information.
[38]
The CDS acknowledged that the seven-year delay
between the events leading to the grievance and the date when the applicant’s
grievance finally reached the CDS’s office was unusually long. The CDS observed
that the Commanding Officer took two (2) months to forward the applicant’s
complaint to an IA, while QR&O 7.05 provides that he had a duty to
do so within ten (10) days. However, the CDS believes that this unfortunate
delay was explained in his grievance – the need to find an appropriate IA who
was not in a conflict of interest – and found that the applicant failed to
demonstrate that he suffered any prejudice as a result of this delay. The CDS
also observed that, outside of this initial delay, all subsequent decisions
were rendered within the relevant time limits, when such limits existed. The
CDS further notes that the delays between 2008 and 2010 had been caused by the
applicant’s own procedures before this Court (Applicant’s Record at 550-551).
[39]
The CDS then considered the applicant’s
allegation that he did not receive full disclosure of the documents to be
considered in the processing of his grievance. The CDS found no evidence that
the IA used any document that was not provided by the applicant himself or
disclosed to him beforehand. The CDS acknowledged that the CFGB and the
Director of Grievances collected additional information at the FA level, but
most of this information was repetitive and there is no evidence that any of
this information was used by the IA or even available to him when he made his
determination. Furthermore, the CDS noted that the applicant was provided with
additional disclosure of documents to be used at the FA level. After having
thoroughly reviewed his entire grievance file, the CDS was satisfied that the
applicant obtained full disclosure of all documents used to adjudicate his
grievance and obtained sufficient opportunity to make representations based on
the full amount of information gathered during the review of his grievance
(Applicant’s Record at 551-552).
[40]
Fifth, the CDS concluded that the IA and the
CFGB did not unduly focus the review of the applicant’s grievance by
emphasizing the “crux” of his allegations, namely his repeated failure of PO 103. While conceding that the IA and CFGB focused on the failure of PO 103 and did not
conduct a detailed analysis of every allegation, the CDS noted that the
applicant failed to specify any major issue that would have been neglected. He
also observed that it was sometimes relevant to narrow the scope of a grievance
to ensure that the most relevant issues are examined thoroughly. The CDS
concluded that further examination of the issues that were not dealt with in
great detail, such as the clerical errors on the applicant’s evaluation forms,
was not warranted as the conclusion that the applicant did not pass the CAP
0309 course is enough to deny his grievance (Applicant’s Record at 552-553).
3.
Issues
[41]
The case at bar raises two (2) issues:
A.
Was the applicant denied procedural fairness throughout
the processing of his grievance?
B.
Was the CDS’s decision to dismiss the
applicant’s grievance reasonable?
4.
Relevant provisions
[42]
The relevant provisions, in the case at bar, are
referred to in the annex.
5.
Standard of review
[43]
Both parties submit, and the Court agrees, that
the correctness standard applies to issues of procedural fairness (Schmidt v
Canada (Attorney General), 2011 FC 356 at para 14, [2011] FCJ No 463 (QL) [Schmidt];
Smith v Canada (Chief of the Defence Staff), 2010 FC 321 at para 37, [2010]
FCJ No 371 (QL); Sketchley v Canada (Attorney General), 2005 FCA 404 at
para 53, [2005] FCJ No 2056 (QL)).
[44]
The Court is also of the view that the
reasonableness standard applies to a final decision by the CDS on a grievance.
Since the CDS’s decisions are final and that, in deciding a grievance, he
applies policies or rules that he promulgated or for which he is responsible,
significant deference should be owed to his findings of fact and of mixed fact
and law (Jones v Canada (Attorney General), 2009 FC 46 at paras 22-26,
[2009] FCJ No 84 (QL); Zimmerman v Canada (Attorney General), 2009 FC
1298 at paras 23-25, [2009] FCJ No 1663 (QL) reversed on other grounds in Zimmerman
v Canada (Attorney General), 2011 FCA 43, [2011] FCJ No
163 (QL)).
[45]
Both parties submitted a fair number of detailed
arguments to the Court.
6.
Arguments
A.
Applicant’s arguments
(a)
Procedural fairness
[46]
The applicant makes five (5) main submissions
concerning procedural fairness.
[47]
First, the applicant submits that the first and
second IAs failed to articulate terms of reference for a summary investigation,
contrary to DAOD 7002-2. This failure permeated the entire grievance
process, including the CDS’s decision, and denied the applicant the opportunity
to ascertain that his claims were addressed in a fair and proper manner
(Applicant’s Memorandum of Fact and Law at paras 23-24).
[48]
Second, the applicant contends that the fact
that the Commandant, acting as IA, denied his grievance two (2) days before the
School’s Chief Standards Officer issued his investigative report on the
applicant’s complaints suggests that the Commandant was biased and deprived the
applicant an opportunity to respond to the report’s findings (Applicant’s
Memorandum of Fact and Law at paras 25-30).
[49]
Third, the applicant claims that the respondent
did not provide him with a full disclosure of the documents necessary to
determine his case nor did it assist him in his grievance, contrary to the
duties set out in the legislative and regulatory scheme (Canadian Forces
Administrative Orders, 19.32, para 13; the NDA, s 29.20-29.23; QR&O
7.03, 7.04). The applicant submits that the respondent, by separating him from
the other students, prevented him from collecting witnesses’ statements. The
applicant gave a list of potential witnesses to the respondent, but he never
received a disclosure confirming that his witnesses had been contacted. The
applicant also observed that he made several requests to obtain disclosure of
documents to be considered by the CFGB but that, if he obtained some documents,
he never received the full list of documents that were presumably considered.
The cumulative effect of these failures was to deny the applicant’s right to
know the case to be met (Applicant’s Memorandum of Fact and Law at paras 31-41;
Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at
para 122, [2002] 1 S.C.R. 3; Ruby v Canada (Solicitor General), 2002 SCC 75
at para 40, [2002] 4 S.C.R. 3 [Ruby]).
[50]
Fourth, the applicant submits that, because he
was separated from the other students, he was unable to collect witnesses’
statements to support his grievance and his harassment complaints. The
applicant submitted a list of thirteen (13) potential witnesses, but only three
(3) were interviewed while the respondent had full access to every student (Applicant’s
Memorandum of Fact and Law at para 42; Applicant’s Record at 195).
[51]
Fifth, the applicant submits that the delay in
assessing his grievance breached the principles of natural justice and the duty
of fairness. The processing delays and duties of the IA, the Final Authority
(FA), are set out in the QR&O 7.02, 7.05, 7.07, 7.10, 7.16, 7.16(1).
The applicant suggests that the starting date of the delay should not be March
2004, as implied by the CDS in his decision, but the date when the grievance
was first filed, namely on December 3, 2003. The applicant points out that the
decision of the IA was rendered on December 3, 2004, twelve (12) months after
the filing of the first grievance, and was not transmitted to the applicant
before January 4, 2005 (Applicant’s Record at 219, 228). In addition, the CFGB
waited more than two (2) years before assigning the file for review
(Applicant’s Record at 374, 442). The applicant insists that he respected the
statutory delays when filing his claims and appeals throughout the grievance
process. The applicant submits that the seven-year delay between his first
grievance and the final decision by the CDS caused the applicant great
prejudice, stagnated his career and deprived him of the relief sought since the
CDS’s decision was issued years after his release from the CF (Applicant’s
Memorandum of Fact and Law at paras 43-57; Blencoe v British Columbia (Human
Rights Commission), 2000 SCC 44 at paras 101-103, 115, [2000] 2 S.C.R. 307 [Blencoe]).
(b)
Consideration of the evidence
[52]
The applicant argues that the CDS’s decision is
unreasonable on two (2) basis.
[53]
First, the applicant contends that the issues
revolving around the alteration of his evaluation form and the fact that his
Military Personal Record Resume still mentions that he passed the CAP course
have not been resolved by the CDS. Based on the record, his decision on this
point is unreasonable (Applicant’s Memorandum of Fact and Law at para 58;
Applicant’s Record at 241, 342-344).
[54]
Second, the applicant believes, contrary to the CDS’s
conclusion, that there was enough evidence on the record to substantiate his
harassment claim. Any deficiency in the evidence is due to the limited capacity
of the applicant to collect evidence and to the failure of the RO to obtain all
relevant information (Applicant’s Memorandum of Fact and Law at para 59).
B.
Respondent’s arguments
(a)
Procedural fairness
[55]
The respondent submits that the applicant was
afforded procedural fairness and that the whole redress of the grievance
process was “exceedingly fair” (Respondent’s Memorandum of Fact and Law at para
47).
[56]
First, the respondent argues that the redress of
the grievance process provided for independent review. The respondent recalls
that the focus of this judicial review is the decision of the CDS, and not the
CFGB’s Grievance Analysis Report (Applicant’s Record at 348-376) or the CFGB’s
Findings and Recommendations (Applicant’s Record at 393-416) (Zimmerman,
above at para 35). Furthermore, nothing in the record suggests that the
investigative reports were problematic or that they heavily influenced the
decisions of the IA or of the CDS, as they mostly provided background context
and the main evidentiary basis at the FA level was the CAP course file itself.
Finally, the respondent submits that if the Court finds that there was any
defect in the conduct of the CFGB’s investigation, they would have been cured
by the robust de novo assessment that was provided to the applicant by
the CDS (Respondent’s Memorandum of Fact and Law at paras 49-56; Schmidt,
above at paras 16-17).
[57]
The respondent also submits that the applicant
failed to establish that the Commandant who initially responded to his
complaint was biased. A finding of bias requires to demonstrate that an
informed person, viewing the matter realistically and practically, would think
that it is more likely than not that the decision-maker either consciously or
unconsciously would not decide fairly (Blair v Canada (Attorney General),
2010 FC 227 at para 28, [2010] FCJ No 306 (QL)). The applicant only made unsubstantiated
allegations concerning the Commandant and such speculation, absent credible
evidence, is not sufficient.
[58]
The respondent objects to the applicant’s
allegation that the CFGB’s two (2) reports were subjected to DAOD 7002-2
and that the respondent failed by not articulating the terms of reference.
Because his complaints have been treated as grievances since the beginning, the
reports were subjected to section 29 of the NDA (the Act) and chapter 7
of the QR&O, and neither of them mentions the DAOD 7002-2.
Furthermore, the CFGB and the CDS correctly concluded that the RO was under no
duty to conduct a formal investigation since the applicant’s harassment
complaint did not meet the requirements of the definition of harassment
(Respondent’s Memorandum of Fact and Law at paras 60-62).
[59]
Second, the respondent contends that the
applicant was provided with full disclosure throughout the grievance process.
Procedural fairness requires the disclosure to the applicant of enough evidence
upon which to determine the merits of a complaint (Richards v Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 1100 at paras
31-32, [2007] FCJ No 1453 (QL)). The requirement is usually met when the
applicant has an opportunity to be heard and to make a full presentation of his
case before the final decision-maker makes his decision. In the present case,
the applicant was aware at all times of the case to be met and of the facts
that were considered in his grievance. He was also provided with documentary
disclosure on five (5) separate occasions. The respondent points out that,
contrary to the applicant’s contentions, there is no evidence that there are
student statements missing from the record or that any other documents were
considered by the IA or the CDS without having been first disclosed to the
applicant. Finally, the respondent mentions that the applicant was able to make
oral and written submissions on five (5) separate occasions during his
grievance process (Respondent’s Memorandum of Fact and Law at paras 63-67).
[60]
Third, the respondent submits that there was no
unreasonable delay in the processing of the applicant’s file. The respondent
recalls that to constitute an inordinate delay, a delay must be such that the
applicant’s right to a fair hearing on the merits is jeopardized (Blencoe,
above at paras 101, 104, 121, 122, 133). This Court has previously found that a
four-year delay in a military grievance, while unfortunate, did not cause the
applicant a prejudice and did not compromise the fairness of his hearing (Dockstader
v Canada (Attorney General), 2008 FC 886 at paras 37-38, [2008] FCJ No 1102
(QL) [Dockstader]). The respondent argues that the applicant did not
establish that the processing delays adversely affected his right to a fair
hearing since the delay provided more time for the authorities to gather
information and the applicant to make submissions. The initial six-month delay
in forwarding the applicant’s grievance to the IA may have been long, but was
due to the complexity of the file and the difficulty to find an appropriate IA.
Once the IA was appointed, there was no undue delay and all statutory
timelines, when they applied, were respected. The respondent adds that the
final two (2) years of the delay, between 2008 and 2010, were the direct result
of the applicant’s actions before this Court. The respondent finally argues
that the applicant failed to prove that the delay caused the applicant any
prejudice. The main prejudice alleged is the adverse effect on his military
career and his marketability. The respondent recalls that CF members serve at
pleasure and have no contractual rights enforceable against the Crown and that
the applicant was not released from the CF as a result of his failure of CAP
0309, but due to a different set of circumstances (Respondent’s Memorandum of
Fact and Law at paras 68-75; Applicant’s Record at 550).
(b)
Reasonableness of the CDS’s decision
[61]
The respondent submits that the CDS’s decision
was reasonable. The CDS determined that the applicant was accurately and fairly
assessed and that he did not meet the CAP course standards. This determination
was based on the evidence before the CDS, which showed that the applicant would
have failed on his third attempt even if the enemy had been at the target since
he failed five (5) of the ten (10) leadership objectives, while he needed to
pass eight (8) (Applicant’s Memorandum of Fact and Law at paras 76-79). The
respondent also submits that the CDS reasonably concluded that the applicant
had failed on his fourth attempt based on the notes of his assessor which
contained the same criticisms addressed to the applicant by the assessors of
his first three (3) attempts (Respondent’s Memorandum of Fact and Law at paras
80-82). Finally, the respondent argues that the CDS reasonably concluded that
the applicant’s allegations did not meet the definition of harassment set at DOAD
5012-0. Furthermore, the alleged statement made by his assessor regarding his
“thick heavy accent” was corroborated by the statements of other students in
the course and would thus constitute an objective assessment and a proper
performance evaluation and fall under the exception of DOAD 5012-0
(Respondent’s Memorandum of Fact and Law at paras 83-89).
7.
Analysis
A.
Procedural fairness
[62]
The Court will address each of the four (4) main
claims of the applicant.
[63]
First, the applicant failed to convince the
Court that DAOD 7002-2 applied to his complaints, which were treated as
grievances from the beginning and fell under the scheme of section 29 of the NDA
and chapter 7 of the QR&O. Even if it did, the applicant did not
explain how the fact that the IA did not issue terms of reference hampered his
knowledge of the case to be met or the fairness of the grievance process.
[64]
Second, the applicant has not established that,
by rendering his decision two (2) days before the School’s Chief Standards
Officer issued his report, the Commandant was biased. The Court notes that the
report was issued on December 12, 2003, while the decision of the Commandant
was delivered on December 10, 2003. Nothing on the record explains this
surprising sequence. However, the Commandant’s decision, in which he found that
the applicant had been treated fairly and that he was not treated differently
than the other students, seems to be fully supported by the evidence and
concurs with the conclusions of the report issued two (2) days after
(Applicant’s Record at 172-173). As the applicant does not make any submissions
as to how this decision suggests a reasonable apprehension of bias, this
contention is without merit.
[65]
More importantly, the aforementioned decision
and report are related to the 2003 complaint and predate the grievance process
before the CDS, which started in March 2004, by more than a year. As such, they
fall outside the scope of the present judicial review.
[66]
Third, the applicant did not demonstrate that
there was inadequate disclosure in the grievance process. The issue to
determine is not whether the respondent disclosed every document requested by
the applicant or every document remotely relevant to his grievance, but whether
the disclosure that was provided afforded the applicant an opportunity to know
the CDS’s position and address the evidence that could undermine his arguments.
In order to know the case against him and bring evidence to prove his position,
the respondent had the duty to disclose all the information on which he relied
(May v Ferndale Institution, 2005 SCC 82 at paras 91-92, [2005] 3 SCR
809).
[67]
The applicant contends that he did not have the
ability to collect witnesses’ evidence and suggests the CDS might have retained
some statements from students enrolled in the CAP 0309 course. He also alleges
that he never received the full list of documents that were considered by the
CDS but not expressly mentioned in his decision. No evidence establishing the
existence of such documents or otherwise supporting these contentions was
adduced. Based on the record and the speculative nature of the applicant’s
allegations, the Court is satisfied that the disclosure provided by the
respondent throughout the grievance process enabled the applicant to fully
understand the case he had to meet and to respond to the evidence that was
collected by the CDS.
[68]
Concerning the delays, the applicant alleges
that approximately seven (7) years elapsed between the applicant’s initial
written complaint, filed on December 3, 2003, and the final decision of the
CDS, rendered on November 23, 2010. The applicant submitted before this Court that
a delay of two (2) years and a half would have amounted to a reasonable delay.
It is however worthy of note that the grievance process was suspended for
approximately two (2) years between 2008 and 2010, due to the applicant’s
action before the Federal Court. The grievance procedure before the CDS did not
start before March 2004, when the applicant forwarded his grievance to him for
consideration. Even when the relevant period is narrowed to take into account
these considerations, the delay is approximately between four (4) to five (5)
years.
[69]
The Supreme Court of Canada, in Blencoe,
above at paras 121-122, teaches that the principles applicable to delays in the
administrative law context are the following:
121 To constitute a breach of
the duty of fairness, the delay must have been unreasonable or inordinate
(Brown and Evans, supra, at p. 9-68). There is no abuse of process by
delay per se. The respondent must demonstrate that the delay was
unacceptable to the point of being so oppressive as to taint the proceedings.
While I am prepared to accept that the stress and stigma resulting from an
inordinate delay may contribute to an abuse of process, I am not convinced that
the delay in this case was “inordinate”.
122 The determination of whether a delay
has become inordinate depends on the nature of the case and its complexity, the
facts and issues, the purpose and nature of the proceedings, whether the
respondent contributed to the delay or waived the delay, and other
circumstances of the case. As previously mentioned, the determination of
whether a delay is inordinate is not based on the length of the delay alone,
but on contextual factors, including the nature of the various rights at stake
in the proceedings, in the attempt to determine whether the community’s sense
of fairness would be offended by the delay.
[70]
In the case at bar, the delay is not, given the
facts of this case, “so oppressive as to taint the proceedings”. The Court
notes that the applicant contributed to the delays by initiating an action
before this Court prior to the final decision of the CDS. In addition, the
applicant broadened his complaint at the CDS level and made several new
allegations, which required more extensive verifications. Finally, even if such
a processing delay was undoubtedly inconvenient for the applicant, there is no
evidence that he suffered a prejudice likely to compromise the fairness of the
hearing. The record demonstrates that the applicant was ultimately honourably
discharged from the CF because of his refusal to enrol in subsequent CAP
courses, and the impossibility to transfer him to an occupation of his choice
that ensued, not because of his failure of CAP 0309 (Applicant’s Record at
550).
[71]
For all of these reasons, the Court is of the
view that there is no breach of procedural fairness in the applicant’s grievance
process.
B.
Reasonableness
[72]
The applicant contends that the CDS’s findings
that the modifications to his assessment forms were clerical errors and that
his allegations did not meet the requirements of harassment were unreasonable.
[73]
However, the applicant does not point to any
specific omission or misconstruction of the evidence by the CDS. He is
essentially requesting the Court to reweigh the evidence that was before the
CDS and was the subject of a detailed report of the CFGB. The role of the Court
is not to reweigh the evidence, but to determine if the CDS’s findings fall
within the range of reasonable outcomes defensible with regard to the evidence
and the law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1
SCR 190).
[74]
In the present case, the CDS undeniably
“grapple[d] with the substance of [the applicant’s] complaints, questions and
concerns” (Zimmerman, above at para 23), his decision was thorough and
well reasoned, and he discussed all the relevant evidence. His reasons should
therefore not be disturbed.
[75]
For the reasons above, the intervention of the
Court is not warranted.
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