Docket: T-1205-14
Citation:
2015 FC 775
Ottawa, Ontario, June 22, 2015
PRESENT: The
Honourable Mr. Justice de Montigny
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BETWEEN:
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JASYN EVERETT
WALSH
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
The Chief of the Defence Staff (CDS), in his
capacity as Final Authority (FA) in the grievance process under the National
Defence Act, RSC 1985, c N-5, denied the Applicant’s grievance of his
release following an administrative review of his repeated sexual misconduct.
The Applicant now seeks judicial review of the CDS’ decision.
[2]
For the reasons that follow, I have come to the
conclusion that the CDS’ decision was both reasonable and in accordance with
the principles of procedural fairness. As a result, the application for
judicial review is dismissed.
I.
Facts
[3]
The Applicant joined the Primary Reserve in
January 1998 and served in several units on an occasional part-time as well as
full-time basis until his release from the Canadian Forces (CF) in March 2010.
[4]
The Applicant was charged with committing an
indecent act in October of 2001. The charges were stayed and the Applicant then
attended a six-month Forensics Sex Offender Treatment Program followed by
monthly sex offender maintenance sessions. The arrest was not reported by the Applicant
to his chain of command and it did not come to light until the investigation of
a subsequent offence in January 2008.
[5]
On January 27, 2008, the Applicant was arrested
by the Vancouver Police Department and charged with committing an indecent act
under section 173(1)(a) of the Criminal Code, RSC 1985, c C-46. He was
convicted of that offence in June 2008, and received a conditional discharge
with two years' probation and other conditions.
[6]
In May 2008, the Director Military Careers
Administration (DMCA) sent a message to the Applicant’s chain of command
advising them of their responsibility to conduct an investigation to determine
if the Applicant had violated Canadian Forces Administrative Order (CFAO) 19-36
(Sexual Misconduct), and submit a report with supporting documentation.
[7]
In September 2009, while still on probation, the
Applicant was detained and cautioned by the Victoria Police Department for
committing another indecent act. No charges were laid. Shortly thereafter, the
DMCA staff completed their administrative review of the Applicant’s case and
concluded he had violated Defence Administrative Order and Directive (DAOD)
5019-5 (Sexual Misconduct and Sexual Disorders), which replaced the former CFAO
19-36. DMCA staff recommended to DMCA that the Applicant be released pursuant
to item 5(f) of the Table to article 15.01 of the Queen’s Regulations and
Orders for the Canadian Forces (QR&Os).
[8]
In October 2009, the Applicant was provided with
a disclosure package concerning the administrative review and invited to
provide representation.
[9]
In November 2009, the Applicant responded to the
disclosure and requested that the recommendation for release be changed to
retention with counselling and probation. The Applicant supported his request
with statements from two psychiatrists and his probation officer as well as a
number of his Performance Evaluation Reports (PER).
[10]
In December 2009, the Applicant’s Commanding
Officer (CO) provided extensive comments on the Applicant’s circumstances, his
performance and the medical reports. Taking all these factors into account, the
CO concurred that the Applicant should be released from the CF.
[11]
In February 2010, the DMCA issued a decision to
release the Applicant from the CF under item 5(f) of the QR&Os (unsuitable
for further service). In March 2010, the Applicant was released from the CF
under item 5(f) of the QR&Os.
[12]
On February 8, 2010, the Applicant grieved the
DMCA decision to release him. That grievance was denied on June 1, 2010 by the
Director General Military Careers (DGMC), as the Initial Authority.
[13]
On September 2, 2010, the Applicant sent a
letter (which included an opinion from his legal counsel) to the CDS requesting
reinstatement in the CF. Several subject matter experts (SME) were thereafter
consulted on the matters raised in the Applicant’s grievance, and the Applicant
was provided with disclosure during this process and was able to make several
representations.
[14]
On September 30, 2010, the Applicant’s grievance
was referred to the Military Grievances External Review Committee (the
Committee), formerly known as the Canadian Forces Grievance Board. On December
17, 2010 the Committee provided its findings and recommendations in relation to
the Applicant’s grievance. The Committee recommended the Applicant’s grievance
be upheld and his release considered void ab initio. The Committee also
recommended the Applicant be placed on counselling and probation for sexual
misconduct.
[15]
On October 19, 2011 the Director General
Canadian Forces Grievance Authority (DGCFGA) produced a grievance synopsis
recommending the CDS deny the grievance on the basis that the Initial Authority
decision did not breach procedural fairness. On December 12, 2011 the Applicant
submitted a representation in response to the grievance synopsis.
[16]
On November 14, 2013 the DGCFGA produced a
second grievance synopsis recommending the CDS deny the grievance on the basis
that there was no evidence on the file to support the Applicant’s contention
that his withdrawal from Paxil produced an adverse reaction that led to his
reoffending. On January 12, 2014 the Applicant submitted a representation in
response to the second grievance synopsis.
[17]
On March 17, 2014, the CDS denied the
Applicant’s grievance.
II.
The impugned decision
[18]
Before dealing with the Applicant’s main
arguments, the CDS addressed a few preliminary issues. First, he opined that
the Federal Court of Appeal decision in McBride v Canada (National Defence),
2012 FCA 181[McBride] established that a de novo hearing cures a
breach of procedural fairness. As such, the Committee’s opinion that the
Applicant’s release was void ab initio because he was denied procedural
fairness could not be accepted.
[19]
The CDS also acknowledged that the DMCA did not
explicitly set out the reasons for his decision or adequately address the
Applicant’s representations. However, the CDS set aside that decision and
endeavoured to address all of the Applicant’s concerns and explain why he came
to a different conclusion than that of the Committee.
[20]
Notwithstanding that there is no time limit for
the FA to consider and determine a grievance, the CDS recognized that the
Applicant’s grievance had experienced considerable delay. However, because this
delay was a result of a combination of factors, the CDS found that it did not
establish partiality. Similarly, the fact that the synopses prepared by the
DGCFGA analysts did not refer to civilian administrative law publications or
legal cases does not amount to partiality, because the policy documents
relevant to the Applicant’s grievance are the DAOD’s. In any case, the synopses
contain advice and are not decisions of the FA.
[21]
Turning to the reasonableness of the Applicant’s
release, the CDS noted the following factors: the misconduct that led to the administrative
review, the Applicant’s career performance and his CO’s recommendation, his
representations, and the assessments regarding his medical care.
[22]
With respect to the Applicant’s contention that
his three sexual misconduct offences were minor in nature, the CDS noted that
the Committee did not provide any explanation as to why it stated that the
Applicant’s transgressions, “although significant, are
not on the same level as the usual sexual misconduct case”. He also
observed that the Applicant did not report the October 2001 sexual misconduct incident
as required.
[23]
Absent any impact statements from the
Applicant’s victims or co-workers, it was not possible to determine the extent
of the negative impact the Applicant’s actions may have had. Moreover, a lack
of media involvement did not mean the CF was not discredited in the eyes of the
public, which included the civilian police officers, probation personnel,
medical practitioners and victims. Most significantly, the issue of publicity
is immaterial and the CF does not determine the nature of a member’s conduct by
first determining whether or not the behaviour garnered media attention. While
the Applicant’s offences may be of a minor nature according to the Criminal
Code, this is not the only measure of right and wrong for a CF member. As
stated by the CDS:
The CAF Code of Values and Ethics
governs conduct within the CAF and there can be no mistake that compliance with
the principles, values and expected behaviours is an order for all CAF members.
As already discussed, we hold ourselves to a high standard and accept the
consequences of our decisions and actions. Overall, I conclude that your three
sexual misconduct incidents are not minor in nature within the military context
and that the continued occurrences of the misconduct over a span of approximately
eight years, notwithstanding that you were provided with medical assistance,
treatment, and time to overcome your propensity for such inappropriate
behaviour/conduct, brought discredit to the CAF and cannot be tolerated by an
individual that wears the CAF uniform.
Certified Tribunal Record, p 7
[24]
The CDS also took note of the fact that the
Applicant appeared to have accepted the gravity of his conduct and had
expressed remorse. He reviewed his annual performance reports and mentioned
that the Applicant was consistently assessed as a dedicated, strong performer
throughout his career and was an above average Master Seaman. Contrary to the
Applicant’s submission, however, the CDS found that the Applicant’s CO was not
dismissive of the Applicant’s performance but exercised his due diligence and
provided a thorough and well-reasoned recommendation. He added that the
Applicant, by not reporting his October 2001 arrest to his chain of command, in
effect denied the CF the opportunity to counsel and support him early in his
career.
[25]
As for the psychiatric report to the effect that
exhibitionism is generally viewed as a nuisance behaviour and that there is a
prospect of favourable change over the long term, the CDS indicated that the
Applicant committed a third indecent act while on probation, despite the
considerable treatment received from both civilian and CF medical
practitioners. Moreover, the fact that a CF member has a medical condition does
not preclude the CF from taking such administrative or disciplinary actions as
deemed appropriate under the circumstances. Of note, the CF did not bring
military disciplinary action against the Applicant, but rather undertook an
administrative process which resulted in release.
[26]
Counsel for the Applicant had also contended that
the Applicant’s unit’s medical staff had not monitored his progress closely
enough after stopping his medication, resulting in an adverse reaction which
contributed to his September 29, 2009 arrest. The CDS found that there was no
evidence to substantiate the Applicant’s contention that his medical
practitioners were negligent with respect to stopping his medication or
otherwise. The Applicant’s treatment was consistent with the standard of care
and he was treated appropriately by the mental health department. Moreover, the
Applicant’s own submissions indicated a number of factors that contributed to
the September 2009 sexual misconduct incident, and that the medication
withdrawal was a marginal factor at best.
[27]
The CDS summed up his findings in the following
way:
In determining whether your compulsory
release under item 5(f) was reasonable and justified, I have considered the
following factors in reaching my decision: the sexual misconduct that initiated
the AR; your career performance; your CO’s recommendation; your
representations; as well as your medical assessments. I am also cognisant of
the fact that you have received assistance in your rehabilitation through the
provision of the two educational programs following you [sic] conviction
in 2001. As a result, I have reached the independent conclusion that your above
average career performance, your admission of guilt and the medical factors
associated with your treatment are not enough to counterbalance your CO’s
recommendation supporting 5(f) release and the weight the CAF assigns to the
serious nature of your sexual misconduct. I therefore determine that your
release from the CAF was a reasonable outcome of the nature of your repeated
misconduct.
Applicant’s Record p 19
III.
Issues
[28]
The Applicant raised a number of issues
pertaining both to the reasonableness of the decision and to procedural
fairness. With respect to the reasonableness of the decision, the Applicant
submitted that the CDS failed to consider all the major points that he raised
throughout the military grievance process, including his submission that his
psychological/medical condition did not seriously impair his usefulness to the
CF. In addition, the CDS did not provide adequate reasons and did not have an
evidentiary basis to reject the medical opinion according to which his
medication withdrawal played a significant role in the third incident of
September 29, 2009.
[29]
As for the procedural fairness aspect of the
decision, the Applicant raises two issues. First, he attempts to distinguish
the Federal Court of Appeal decision in McBride and relies on Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir] to argue
that a de novo review does not cure a breach of procedural fairness.
Second, he argues that the delay in the adjudication process led to a breach of
procedural fairness and/or an abuse of process.
[30]
I will now address each of these issues. Before
doing so, however, I will briefly set out the legislative and policy framework,
and determine the appropriate standard of review.
A.
Legislative and Policy Framework
[31]
Sections 29 to 29.15 of the National Defence
Act prescribe the CF’s grievance process. According to s 29(1), a CF member
aggrieved by any decision in the administration of the affairs of the CF is
entitled to submit a grievance if no other process for redress is provided
under the National Defence Act. Section 29.11 provides that the CDS is
the final authority in the grievance process. Further, s 29.12 provides that he
shall refer every grievance that is of a type prescribed in regulations made by
the Governor-in-Council, and may refer any other grievance, to the Grievances
Committee for its findings and recommendations before considering and
determining the grievance.
[32]
The Committee’s findings and recommendations are
not binding on the CDS (s 29.13(1)), but he must provide written reasons if he
fails to act upon them (s 29.13(2)). The decision of a final authority (the CDS
may delegate any of his or her powers, pursuant to s 29.14) is final and
binding, and with the exception of judicial review before this Court, is not
subject to appeal or to review by any court (s 29.15).
[33]
As for the DAODs, they are orders to CF members.
DAOD 5019-0 states that “CF members shall be held
accountable for any failure to meet established standards of conduct and
performance resulting from factors within their control”. DAOD 5019-2
outlines the process for conducting an administrative review. DAOD 5019-5 deals
with sexual misconduct and sexual disorders. According to that order, “sexual misconduct” consists of one or more acts that “are either sexual in nature or committed with the intent to
commit an act or acts that are sexual in nature”, and “constitutes an offence under the Criminal Code or
Code of Service Discipline”. More specifically, it includes offences “such as sexual assault, indecent exposure, voyeurism and
acts involving child pornography”. As part of the General Principles, we
find the following CF commitment:
Sexual misconduct destroys basic social and
military values and undermines security, morale, discipline and cohesion in the
CF. It also reflects discredit on the CF and is therefore not tolerated by the
CF.
The CF is committed to ensuring that all
incidents of sexual misconduct are reported, investigated and dealt with as
soon as practicable.
Applicant’s Record, p 288
B.
Standard of review
[34]
The parties are in agreement that decisions of
the CDS involve questions of mixed fact and law and are therefore reviewable on
a standard of reasonableness: Snieder v Canada (Attorney General), 2013
FC 218, at para 20. As a result, the Court will intervene only if the decision
of the CDS is outside the range of “possible,
acceptable outcomes which are defensible in respect of the facts and law”
or if the decision-making process lacks justification, transparency and
intelligibility; see: Dunsmuir at para 47. Sufficiency and adequacy of
the reasons must be assessed as part of that enquiry: Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708, [Newfoundland and Labrador Nurses’ Union], at
paras 14-15.
[35]
As for issues raising procedural fairness
concerns, they are reviewable on the standard of correctness: Smith v Canada
(National Defence), 2010 FC 321, at paras 34-37; McBride at para 32.
IV.
Analysis
A.
The reasonableness of the decision
[36]
Counsel for the Applicant submitted that the CDS
disregarded the findings of the Committee without providing adequate reasons
for doing so. In particular, it is argued that the CDS did not consider the
medical opinions confirming that the Applicant was treatable and had been
successfully participating in the recommended rehabilitation programs prior to
his release. Counsel is also of the view that the CDS failed to explain why he
chose release, the most serious sanction, over counselling and probation as
recommended by the Committee.
[37]
This argument is without merit. At pages 9 and
10 of his reasons, the CDS explicitly deals with the Applicant’s medical
assessments and refers to reports both from Dr. Eaves, the Applicant’s
psychiatrist, and from Dr. Robinow, another psychiatrist who treated him. He
quotes Dr. Eaves according to whom the “prognosis for
exhibitionists is generally not good”, but that in the Applicant’s case
there was a prospect of favourable change over the long term. He also
acknowledges Dr. Robinow’s report of November 2009 that the Applicant’s
prognosis for appropriate function and conduct in the CF “remains very good as long as he continues to adhere to his
treatment”, but emphasizes that this prognosis relates to his depression
and not to the issues underlying his sexual misconduct.
[38]
The Applicant takes issue with the CDS’
conclusion that Dr. Robinow’s prognosis appears to be related to the
Applicant’s depression and not his sexual misconduct. The Applicant points to Dr.
Robinow’s notes in May, July and August 2008 with respect to the Applicant’s
Paxil dosage that would tend to confirm that the condition he was talking about
in his medical note of November 2009 was indeed exhibitionism.
[39]
It may well be that the Applicant saw Dr.
Robinow at least in part to treat him for the causes of his exhibitionism. However,
as indicated by the Respondent, the Applicant states in his own submission
dated January 12, 2014 that he saw Dr. Robinow in September 2009 with regards
to his depression. At that time, he indicated he had restarted his Paxil
because he was feeling mildly down. Further, in Dr. Stein’s psychological
assessment dated June 26, 2013, there is a note that Dr. Robinow mentioned that
the Applicant had suffered from dysthymia since 2002, and was treated with
supportive therapy, behavioural measures and Paxil, an anti-depressant. Dr.
Eaves’ report dated May 31, 2008 indicates quite clearly that the Applicant
recently switched to seeing a psychiatrist, Dr. Robinow, for his depression. In
light of all this, and considering the cryptic nature of Dr. Robinow’s report
of November 2009, the CDS could reasonably conclude that his favourable
prognosis related to the Applicant’s depression.
[40]
It is clear, therefore, that the CDS did have
regard to the medical opinions in the file. As for the reasons why he decided
to diverge from the Committee’s recommendation, they are to be clearly found in
the paragraph immediately following the discussion of the medical reports.
First, the Applicant committed a third indecent act while on probation, despite
the considerable treatment he had received. Second, his sexual misconduct is
serious and not merely a “nuisance behaviour” as
characterized by Dr. Eaves.
[41]
These reasons are perfectly intelligible and
make it clear why the CDS decided to depart from the Committee’s
recommendations. The same is true in every instance where the CDS’ perspective
differed from that of the Committee. Contrary to the Applicant’s submissions,
the CDS did explain how a de novo hearing can cure a serious breach of
procedural fairness. The Applicant is of the view that his circumstances are
much different from those in McBride, essentially because the breach of
procedural fairness in that case was less severe than in the Applicant’s case.
The CDS disagreed, emphasizing that McBride also dealt with a member who
had been released by the time his grievance was considered. He also stressed
that it is the de novo consideration of the grievor’s file at various
stages of the grievance process that cures a previous breach of procedural
fairness. The CDS was entitled to come to that finding, and he more than
adequately explained his rationale for not acting on the Committee’s
recommendation to consider the Applicant’s release void ab initio.
[42]
When dealing with an argument revolving around
the adequacy of reasons, one must remember that such an argument cannot be a
stand-alone basis for quashing a decision. A decision will not be quashed
merely because it could have been better articulated or more thorough. As the
Supreme Court stated in Newfoundland and Labrador Nurses’ Union at para
16:
Reasons may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis. A decision-maker is not required to
make an explicit finding on each constituent element, however subordinate,
leading to its final conclusion… In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
[43]
I have no hesitation to conclude that, when
considered through that lens, the decision of the CDS passes muster. The
decision may not be the one this Court would have made, it may even be
considered somewhat harsh, but it is certainly not a decision that is
unintelligible or for which there is no basis in the evidence. I note, in
passing, that the Applicant was released under s 5(f) (unsuitable for further
service) and not under s 2(a) (unsatisfactory conduct), in recognition of his
entire service record. The Final Authority is given a broad discretion when
considering and determining grievances, especially when identifying the
remedies appropriate under the circumstances, because of his in-depth knowledge
of the military environment and operations. These kinds of decisions are owed a
high degree of deference, and I have not been convinced that the course of
action chosen (release instead of counselling and probation) is not one of the “possible, acceptable outcomes which are defensible in
respect of the facts and law”.
[44]
The Applicant further contends that the CDS
failed to consider certain points he raised throughout the grievance process,
and more particularly his submission that his psychological/medical condition
did not seriously impair his usefulness to the CF (as is required when release
is ordered pursuant to s 5(f)). He argues that his case should be compared to
that of another CF member who raped a 14 year old girl and who did not
participate in any treatment programs but nevertheless received counselling and
probation.
[45]
Having carefully read the impugned decision of
the CDS as a whole, I do not believe it can be said that the reasons do not
address the Applicant’s submissions. It is clear that the CDS turned his mind
to the instructions governing the release of CF members, as set out in QR&O
Chapter 15. Pursuant to those instructions, s 5(f) “[a]pplies
to the release of an officer or non-commissioned member who, either wholly or
chiefly because of factors within his control, develops personal weakness or
behaviour or has domestic or other personal problems that seriously impair his
usefulness to or impose an excessive administrative burden on the Canadian
Forces”.
[46]
Throughout his reasons, the CDS makes it
abundantly clear that the seriousness of the Applicant’s repeated sexual
misconduct is the underlying rationale for his finding that the Applicant is
unsuitable for service. He also reviewed the Applicant’s medical assessments as
well as his employment record and found that his conduct was within his control
and that he was wholly responsible for his actions. He endorsed his CO’s
recommendation supporting release under s 5(f), and he found that the
medication withdrawal was at best a marginal underlying cause of the September
2009 incident on the basis of the medical review that he had requested from the
Director of Medical Policy and of the Applicant’s own explanations for his
conduct.
[47]
As for the CDS’ refusal to consider the
grievance case the Applicant submitted as a comparator, this was entirely
appropriate in the context of an administrative review. It is a well-established
principle of administrative law that each case turns on its own merits, and
that a decision-maker is not bound by any previous decision.
[48]
Accordingly, I am of the view that the decision
reached by the CDS is consistent with the military guidelines regarding release
of CF members, and that the reasons are sufficient to explain why placing the
Applicant on counselling and probation was not the chosen course of action. All
of the Applicant’s submissions were addressed, and there is no ambiguity as to
why they were not accepted. The Court’s mandate on judicial review is not to
reweigh the evidence, but to determine if the decision reached is intelligible
and is supported by the evidence and the law. In my respectful opinion, the
decision of the CDS meets those criteria.
B.
The procedural fairness argument
[49]
The Committee found that the Applicant was not
provided procedural fairness in that the Administrative Review Process was
fundamentally flawed. More specifically, the Committee found that the Applicant’s
unit failed to take action on the Applicant’s file in a timely manner. While
the Administrative Review Process was initiated by the DMCA in May 2008, it
remained dormant until the Applicant was involved in another incident in
September 2009. Moreover, the Committee found that the DMCA approved the
recommendation to release the Applicant without providing reasons for his
decision, as required under DAOD 5019-2. The Committee found that these
breaches of procedural fairness could not be cured by the Grievance process,
and therefore recommended that the Applicant’s grievance be upheld.
[50]
As previously mentioned the CDS disagreed with
those findings and recommendations and relied on McBride for the
proposition that a de novo hearing does cure a breach of procedural
fairness. The Applicant tried to distinguish his case from McBride on
the basis of the fact that the breach of procedural fairness in McBride
was less severe than in his case, and that the breach of procedural fairness
could have been cured by Mr. McBride himself had he decided to obtain a copy of
his medical records as directed by the military.
[51]
I agree with counsel for the Respondent that the
thrust of the Federal Court of Appeal in McBride is that a de novo
review will be sufficient to cure a breach of procedural fairness when the
procedure, considered as a whole, was fair. This is clearly the situation in
the case at bar. Not only did the CDS review the file in its entirety, but the
Applicant was given the opportunity to make representations at every step of
the process. He received disclosure of all documentation regarding the
administrative review of his release and provided several submissions on
material disclosed to him throughout the analysis of his grievance. The CDS
carefully considered the Applicant’s submissions and addressed each one of them
in his reasons. He also acknowledged that the Initial Authority (the DMCA) did
not explicitly state the reasons for his decision nor sufficiently addressed
the Applicant’s representations, but the decision and the process that he
followed to reach it clearly remedied earlier shortcomings. I have no
hesitation to conclude that, when considered as a whole, the Administrative Review
Process was fair.
[52]
Finally, counsel for the Applicant argued that
the unexplained delay from the CDS in adjudicating his claim led to a breach of
procedural fairness and/or an abuse of process in his case. It is clearly
unfortunate that the entire grievance process took more than four years (from
February 2010 to March 2014), and the CDS conceded as much in his decision. He
explained that several subject matter experts were consulted and that the case
was complex, but nevertheless recognized that this protracted process likely
caused the Applicant additional stress as his situation remained in limbo, for
which he apologized.
[53]
Unfortunately, delays in the context of
administrative proceedings are common, and the Supreme Court in Blencoe v
British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307
explained that they do not all amount to breaches of procedural fairness. The
Court accepted that unacceptable delays may amount to an abuse of process in
certain circumstances even where the fairness of the hearing has not been
compromised. In the context of a sexual harassment complaint before a
provincial human rights commission, the Supreme Court provided the following
guidelines to determine whether a delay is unacceptable (at paras 121-122):
To constitute a breach of the duty of
fairness, the delay must have been unreasonable or inordinate…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”.
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.
See also: Moodie v Canada (Attorney
General), 2014 FC 433; Dockstader v Canada (Attorney General), 2008
FC 886
[54]
In the case at bar, I have not been presented
with evidence tending to show that the delay was “so
oppressive as to taint the proceedings”. There is no evidence either
that the Applicant suffered a prejudice likely to compromise the fairness of
the determination of his grievance. The delay was clearly inconvenient and may
not have been satisfactorily explained in its entirety; however, it does not
amount to a breach of procedural fairness calling for the quashing of the
decision made by the CDS.
V.
Conclusion
[55]
For all of the foregoing reasons, I therefore
come to the conclusion that the decision reached by the CDS to release the
Applicant from the CF is reasonable and does not breach the principles of
procedural fairness.
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