Docket: T-1957-14
Citation:
2015 FC 738
Vancouver, British Columbia, June 11, 2015
PRESENT: The
Honourable Mr. Justice Hughes
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BETWEEN:
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SAMUEL S. CHUA
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
(CANADIAN FORCES) AND
CHIEF OF THE DEFENCE STAFF (CDS) AND THE HONOURABLE
PETER MCKAY (FORMER MINISTER OF NATIONAL DEFENCE)
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Respondent
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JUDGMENT AND REASONS
[1]
This is a judicial review of a decision of the
Chief of the Defence Staff (CDS) dated August 18, 2014 declining to grant to
the Applicant the redress that he sought in his grievance dated June 11, 2009
regarding his contention that he was mistreated by the Canadian Armed Forces
because of his medical condition.
[2]
The Applicant is an adult male person who, at
the relevant time, had served some seventeen years with the Canadian Armed
Forces and had achieved the rank of Master Corporal, a non-commissioned
officer. A synopsis of the background events is set out in the decision under
review under the caption Background.
[3]
In brief, the Applicant, while participating in
a authorized basketball game, suffered an injury to his head and neck which was
diagnosed as a concussion. The evidence is not altogether conclusive as to
whether or not this injury led to his later medical issues. I repeat the
balance of the events taken from those as set out in the Background portion of
the decision at issue, which I find sets out accurately the relevant events:
•
On 7 December 2007, the Applicant alleges that
he was kept waiting in the medical inspection room for approximately two hours.
•
ON 11 February 2008, the Applicant sent a
memorandum to a medical officer (MO) requesting a complete review of his
personal and medical situation because he had suffered a variety of medical
issues since the 2004 injury.
•
On 24 February 2009, an MO (Medical Officer)
recommended to the Base Superintendent Clerk that the Applicant be placed on
the Service Personnel Holding List (SPHL).
•
On 25 February, the MO contacted the Base
Commander (B Comd) and informed him that the Applicant had been assigned
medical employment limitations (MEL) that would preclude the Applicant from
returning to full duty. The Applicant was to be recommended for a Director
Medical Policy Review with a recommendation for release. The MO again recommended
that the Applicant be posted to the SPHL.
•
On 26 February 2009, the B Comd recommended that
the Applicant be posted to the SPHL effective immediately.
•
On 1 June 2009, the Applicant requested his
voluntary release.
•
On 11 June 2009, the Applicant submitted a
grievance regarding his medical condition.
•
On 17 July 2009, the Applicant requested that
his voluntary release be cancelled.
•
On 12 August 2009, the B Comd recommended to the
Director Military Careers (D Mil C) that the cancelation request be denied since
there was no indication that a medical condition prevented the Applicant from
employment in the CAF. He noted that the Applicant had refused duties at a
number of different work sites on base and that the Applicant did not appear to
be committed to service in the CAF.
•
On 19 August 2009, the Applicant’s career
manager reviewed the withdrawal request and supported it because he understood
that the Applicant had underlying psychological issues. He noted that the
Applicant’s B Comd and the MO did not support the withdrawal.
•
On 27 August 2009, the D Mil C disagreed with
his staff and did not approve the Applicant’s request to withdraw his voluntary
release request.
•
On 29 September 2009, as a result of his
findings during the Applicant’s release medical, the MO recommended a permanent
medical category.
•
On 6 October 2009, the Applicant was released
under QR&O article 15.01 (Release of Officers and Non-Commissioned
Members), item 4(c) (Voluntary – On Request – Other Causes).
•
On 18 June 2010, as based on the result of an
administrative review/MEL, the release item was changed to 3(b) (Medical) and
backdated to 6 October 2009.
[4]
These facts require some comment. First, the
record is not clear as to why, one month following his request for voluntary
release from the Canadian Armed Forces, the Applicant sought permission to
withdraw that request.
[5]
In May 2009, the Applicant was given a
psychiatric assessment by a medical doctor. That assessment recommended that
the Applicant was not amenable to psychotherapy at that time nor was he
accepting the idea of taking medications He was given a poor prognosis for
return to full employability.
[6]
On June 1, 2009 the Applicant submitted a
written request for voluntary release from the Canadian Forces, the reasons
given were his ongoing medical issues and family matters.
[7]
On July 17, 2009, the Applicant made a written
submission entitled REQ CANCELLATION AND VOLUNTARY RELEASE which, while not
specifically requesting that his request for voluntary release be cancelled,
was treated as such. It stated, inter alia:
3 As a mbr of the CF and a
junior leader, I am taking my responsibility by recognizing that I need medical
treatment; that I require proper care and attention (ref C). My medical officer
(Dr. M. Patterson) suggestion is essential prior to any release decisions I
make. Therefore, “voluntary release’ was and should never been an option.
[8]
The submissions for withdrawal (page 96 of the
Certified Tribunal Record) contain a number of handwritten notes by unknown
persons but presumably members of the Forces involved in this matter, commenting
on these submissions including the following:
I can honestly say that I don’t know what
(the Applicant) wants. He believes that he needs medical care & would fail
to rec(eive) by releasing. However, he doesn’t want to work either.
[9]
I infer that some time between June and July
2009 the Applicant rethought his request for voluntary release and believed
that he might receive better medical care if he remained within Canadian
Forces.
[10]
The Applicant vigorously contests any finding
that he refused to work. I find, however, that there is sufficient evidence to
support the conclusion that the Applicant would not perform or participate in
even the minimal duties assigned to him in 2009 prior to his request for voluntary
release.
[11]
The events subsequent to the Applicant’s release
on October 5, 2009 are reflected in a letter from the Minister of National
Defence to the Applicant’s Member of Parliament dated September 8, 2010. I set
out part of that letter to make the point that the basis for the Applicant’s
release was changed from voluntary to medical which entitled the Applicant to
receive many more benefits, a matter which he admitted in the hearing before
me:
On September 3, 2009, D Mil C informed
Master Corporal Chua that his request to cancel his voluntary release had been
reviewed and was not approved. On October 5, 2009, he was legally released
under Queen’s Regulations and Orders for the Canadian Forces Chapter 15,
Release Item 4(c) – On Request – Other Causes.
On March 3, 2010, Master Corporal Chua
was assigned a permanent medical category of Vision 3, Colour Vision 1, Hearing
1, Geographical 5, Occupational 4, Ai Fitness 5, followed by an administrative
review of his medical file by the Director Medical Policy, prompted by medical
recommendations made in consideration of his release medical inspection at CFB/ASU
Wainwright. The medical employment limitations (MELs) assigned to him were as
follows:
• requires regular specialist follow-up more frequently than
every six months;
• unfit to work in a military operational environment;
• clerical-type work with light physical tasks as tolerated only;
• medically unfit CF EXPRESS program;
• unable to perform drill and parades for at least 30 minutes;
and
• to wear prescription lenses as directed.
• Many of these MELs breach the universality-of-service (detailed
information is available on the Internet at http://admfines.forces.gc.ca/dao-doa/5000/5023-0-eng.asp).
As such, Master Corporal Chua would normally have been released on medical
grounds in due course (item 3(b)).
Although the CO’s comments about Master
Corporal Chua’s medical situation were flawed, his decision to not support the
cancellation of Mater Corporal Chua’s release was not. Given the member’s
circumstances at the time, it was evident to the CO that it was not in the best
interests of the Canadian Forces to cancel the release.
Subsequent to Master Corporal Chua’s
voluntary release, an Administrative Review for MELs was conducted, and it was
determined that his MELs were in breach of Universality of Service at the time
of his release. Consequently, Master Corporal Chua’s item of release was
changed on June 18, 2010, from 4(c) to 39b) to reflect what was deemed to be a
more appropriate item of release. It is important to note that it is the
responsibility of the Canadian Forces to ensure that ill and injured members
are transitioned to civilian care. In this member’s case, the same treatment
that he would have received in the military is available through his provincial
medical system.
Unfortunately, Master Corporal Chua’s
request for cancellation of his release cannot be granted. Once the effective
date of a release has passed, there is no mechanism available to cancel it.
Should he recover and again be fit to serve . . . he may reapply
THE GRIEVANCE
[12]
On 12 August 2009, the Applicant’s Commanding
Officer made the following recommendation to his superiors in Ottawa, namely,
that the Applicant’s request to withdraw his request for voluntary release be
denied:
I have reviewed MCpl Chua’s request to
withdraw his request for voluntary release. There has been no indication that
there is a medical condition that prevents MCpl Chua from employment in the CF.
Indeed his last CF2088 assigned a TCAT because he seemed to be improving as a
result of treatment. MCpl Chua has refused to perform the duties assigned to
him in several different work sites on the base, despite the fact that his
performance in his most recent employment has been considered satisfactory by
his supervisor. I do not consider MCpl Chua to be committed to service in the
CF and I highly recommend that his request to cancel this release be denied.
[13]
As a result the Applicant filed a grievance
(service number T11 211 909) which was referred to the Canadian Forces Grievance
Board and received effective 25 August 2010. The Board found in the Applicant’s
favour. In part, the Board stated:
In my opinion, a more comprehensive and
consistent approach would have been to allow the grievor to withdraw his
voluntary release and post him to the SPHL.
This would have allowed the medical authorities to ascertain whether the
grievor’s medical condition could have improved to the point where he could be
retained. However, as the file materials show, the request for voluntary release
had the effect of cancelling the SPHL proposal (pp. 216-217.) [Emphasis added]
The D Mil C had three months between the
recommendation to post the grievor to the SPHL (26 February 2009) and his
request for a voluntary release. I am satisfied that, had the grievor been
posted to the SPHL during that time, he would not have requested a voluntary
release and he would have remained on the SPHL until he was medically released.
I find that the grievor should have been
permitted to withdraw his voluntary release and that he should have been placed
on the SPHL.
Recommendations
I recommend to the CDS to consider the
grievance in the interests of justice.
I recommend to the CDS that the grievance
be partly upheld by granting the grievor’s request to cancel his voluntary
release and that his release date be adjusted to coincide with the assignment
of the item 3(b) release.
I recommend that the grievor be advised
that it is open to him to apply to re-enrol should he consider that his medical
condition has sufficiently improved.
[14]
At this point it is important to note that much
of their recommendations has been implemented; the Applicant’s release has been
termed as “medical”, his release date had been adjusted, and he has been
invited to apply to re-enrol if his medical condition has improved.
[15]
The Board has been re-named the Grievance
Committee. Section 29.2(1) of the National Defence Act, RSC 1985, C. N-5
provides that the Committee (Board) shall submit its findings to the Chief of
the Defence Staff
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29.2 (1) The
Grievances Committee shall review every grievance referred to it by the Chief
of the Defence Staff and provide its findings and recommendations in writing
to the Chief of the Defence Staff and the officer or non-commissioned member
who submitted the grievance.
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29.2 (1) Le
Comité des griefs examine les griefs dont il est saisi et transmet, par
écrit, ses conclusions et recommandations au chef d’état-major de la défense
et au plaignant.
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[16]
Section 29.13 of the National Defence Act
provides that the Chief of the Defence Staff is not bound by any finding or
recommendation, but, if the Chief disagrees, reasons must be given. The
proceeding before the Chief has been described by the Federal Court of Appeal
in McBride v Canada (Minister of Defence), 2012 FCA 191 at paragraph 45
as a “de novo consideration” In this
case, no new evidence was submitted to the Chief although the Applicant
provided further written submissions.
[17]
The Chief of the Defence Staff, in the decision
under review, disagreed with the Board (Committee) and refused to grant the
redress requested by the Applicant. At page 6 of the Chief’s written decision,
he wrote:
You contend that the CAF acted unfairly,
in bad faith, and in a discriminatory manner in denying you your request to
cancel your voluntary release while a medical release was already in progress.
The Committee found that the B Comd’s
recommendation to deny the withdrawal of your voluntary release without any
material change in fact was inconsistent with his previous recommendation to
post you to the SPHL. On the face of it, I agree. The consideration of a
request to cancel a voluntary release is different from the initial request for
a voluntary release. An initial request comes from the member and is
member-centered, that is, it is the member who is seeking to end their
relationship with the CAF. However, a request to cancel a voluntary release
is CAF-centered; it is the CAF who consider what they need and whether they
require the services of the member requesting the cancellation. [Emphasis added]
I agree that your request to cancel your
voluntary release could have been handled in a better manner and that the B
Comd’s comments were not as well framed as they might have been. However, I
note your stated reluctance to accept treatment and actively participate in
your recovery/return-to-work plan. Because you had declined a number of
possible assignments, your commitment to the CAF was questioned.
I also note that in your memorandum of 17
July 2009, in which you requested the cancellation of your voluntary release,
you did not state any desire to continue your service in the CAF. Rather, you
emphasized only that you wished to be afforded medical treatment. You also
asked that Dr. Patterson be consulted. When this was done, Dr. Patterson
confirmed that a transition to civilian life would be appropriate for you.
In making my decision, I have considered
the concern over your commitment to the CAF, your noted reluctance to accept
treatment, and various proposed assignments to assist in your return to work,
as well as Dr. Patterson’s medical opinion that a transition to civilian life
might benefit you. As a result, I find that the decision to deny your request,
in light of this information, was reasonable.
Regarding your release item, I note that
it was changed to 3(b) (Medical) and was backdated to the date of your
voluntary release. You were then eligible for appropriate medical assistance
and financial benefits.
[18]
At page 7 of his decision, the Chief provided
the following summary:
Summary. In your grievance, you requested
an acknowledgment from the CAF that the lack of actions, interventions, and
resolutions from your previous chain of command, together with the events post
5 December 2007, had affected and continue to affect your depression and
anxiety. I can find no evidence of a direct link between any actions that the
CAF may or may not have taken, and your stated medical issues beginning in
December 2007. As such, I do not grant the redress you request.
[19]
I have provided emphasis in parts of the written
decisions of each of the Board and the Chief of the Defence Staff as it sets
out the basis for the differences in the results. The Board looked at the
matter from the point of view as to what would be good for the Applicant,
whereas the Chief looked at the matter from the point of view as to what would
be good for the Canadian Armed Forces (CAF).
RELIEF REQUESTED
[20]
The Applicant has been self-represented
throughout the grievance process and in the proceedings in this Court. The
relief requested in the grievance process has been modified from time to time
during the grievance process and has been accurately summarized in the decision
under review at pages 1 and 2 under the caption Redress Sought:
Redress Sought. You originally requested
an acknowledgment from the CAF that the lack of action, intervention and
resolution from your previous chain of command, as well as events that occurred
after 5 December 2007, had affected, and continue to affect, your depression
and anxiety.
On March 19, 2010, you modified your
redress and requested:
a. financial compensation for lost wages (future wages and
pension) and interest;
b. financial compensation for pain and suffering;
c. financial compensation for legal costs;
d. a letter of apology from the CAF, signed by the Chief of Defence
Staff and Minister of National Defence;
e. a more serious commitment on the part of the CAF to members
who are physically injured of suffer mental problems;
f. more authority and influence to civilian medical officers in
the decision-making process;
g. the provision of massage therapy and laser eye surgery under
the spectrum of care;
h. donations by the CAF to six health facilities; and
i clear communications with Veterans Affairs Canada with regard
to members with disabilities;
On 10 January 2011, you also requested
that 15 service personnel be subjected to disciplinary measures for harassment
and discrimination.
On 9 March 2011, you requested that three
CAF physicians be subjected to military administrative and/or disciplinary
measures for their lack of empathy, sompassion and support.
On 14 March 2011, you requested that:
a. you be compensated for lost wages and pension in an amount
equivalent to the three-year medical retention period and the six-month
vocational rehabilitation program you believe you should have received;
b. in the event I amend your release date, you be entitled to
vocational rehabilitation for six months, as well as annual and sick leave; and
c. you be reimbursed for all payments you have personally made
for physiotherapy and any other therapies.
[21]
The Applicant has clearly overreached in respect
of the redress sought. He has, in fact, received some of the redress requested
as I have previously noted. Much of the redress is beyond the scope of any
grievance process. I note that, in a different proceeding before this Court,
docket number T-825-11, the Applicant commenced an action seeking damages
against the Attorney General and others, which action was struck out in a
decision of this Court cited as 2014 FC 285.
[22]
At the hearing before me, the Applicant stated
that he understood that the Court’s powers to grant relief in this matter were
limited and that he was simply seeking at this time to have the Court send the matter
back for redetermination.
ISSUES
[23]
The overall issue before me is whether the
decision of the Chief of the Defence Staff dated 18 August 2014 should be sent
back for redetermination. In deciding that issue, I must consider the
following:
[24]
What is the standard of review?
[25]
Was the decision reasonable/correct having
regard to the standard of review?
[26]
Did the Applicant suffer any discrimination or
harassment because of his medical condition?
[27]
Has the Applicant demonstrated that a Charter
breach has occurred?
STANDARD OF REVIEW
[28]
The brief decision of the Federal Court of
Appeal in Harris v Canada (Attorney General), 2013 FCA 278 appealing the
Federal Court decision 2013 FC 571 establishes that, at least in the case where
the Chief of Defence Staff has refused to hear a grievance, the standard of
review is reasonableness. In McBride v Canada (Minister of National Defence),
2012 FCA 181 at paragraphs 32 and 33, the Federal Court of Appeal held that, in
respect of a decision of the Chief of Defence Staff to accept a Grievance
Board’s recommendation, the standard of review is reasonableness in respect of
questions of mixed fact and law except to the extent that these questions raise
extricable questions of law; in reviewing on a reasonableness standard, the
question becomes simply whether the original decision was reasonable.
[29]
No issue in respect of lack of procedural
fairness has been raised here.
[30]
Therefore I accept that the standard of review
that I must apply is that of reasonableness except where there is an extricable
question of law wherein the standard becomes correctness.
Was the Decision Reasonable/Correct
[31]
The Applicant, not being a lawyer, put his
arguments rather diffusely. I distill them down to this:
•
I was sick.
•
The Chief of the Defence Staff got it wrong when
he determined the matter on a CAF centred basis.
I was sick:
[32]
This argument is to be considered from two points
of view. The first is whether the Chief of the Defence Staff should have
recognized that the Applicant did not have the mental capacity to request
voluntary release. The second is whether the Chief of the Defence Staff should
have permitted leeway to the Applicant to change his mind and seek withdrawal
of the request for release; or, put another way, as the Applicant did, was he
discriminated against in not being permitted to withdraw the request because he
was mentally ill.
[33]
The analysis of the Applicant’s mental condition
by the Chief occupies a number of pages of his decision. I review that
analysis, which is largely a factual analysis, on the basis of reasonableness.
The Chief concluded, among other things, that:
•
there was no evidence of a direct link between
the medical treatment given to the Applicant after December 5, 2007 and his
depression and anxiety
•
the chain of command did not deliberately cause
or exacerbate his anxiety and depression
•
the Medical Officer (MO) and chain of command
were following the established procedure to assist the Applicant in becoming as
fully functional as possible within the Canadian Armed Forces
•
the Applicant was reluctant to accept treatment
and actively participate in his recovery/return to work plan
•
the Applicant’s request to cancel his voluntary
release did not include a statement that he wished to continue service with the
Forces but explained that he wished to be afforded medical treatment
•
the doctor favored by the Applicant (Dr. Patterson)
confirmed that a transition to civilian life would be appropriate
[34]
I find, in reviewing the record, that these
findings are reasonable.
[35]
I find further , that there is no evidence of
discriminatory behaviour toward the Applicant. Quite the contrary, he was given
several opportunities to be given working conditions suitable to his mental
condition and afforded many opportunities to consult with medical specialists.
There was no discrimination.
[36]
That leaves the question as to whether the
Applicant had the mental capacity to make the request for voluntary release,
or, for that matter, request withdrawal of that request.
[37]
I note that at no time was this issue raised, as
such, by the Applicant during the grievance process. At the hearing before me
he put it that: they should have realized I was sick. There is no clear
evidence on the record that the Applicant lacked the mental capacity to request
voluntary release, nor is there any evidence that he was coerced into making
such a request. At best, I have found a Psychiatric Assessment by a Dr. Girvin dated
May 14, 2009 which states a number of things including:
• It is the patient’s wish that he makes it very clear, to leave
the military as soon as possible
• He is having ongoing problems with his focus and attention and
he is “under stress”
• He has limited insight and his judgment is affected by his
beliefs (there is no evidence as to what his meant by his “beliefs”)
• He has Panic Attacks, not Disorder
• The patient is not amenable to psychotherapy at this time, nor
is he accepting of the idea of taking medication
• The patient has a poor prognosis for return to full employability
[38]
Dr. Patterson notes on the Applicant’s Medical
Examination for Release dated 29 September 2009:
• Prior concussion syndrome – not objectively supported
• Major clinical depression – Undiff Somatform (?) Disorder
• Panic Attacks
[39]
I find that the evidence does not support a
finding that the Applicant’s mental capacity at the time he sought a voluntary
release, or at the time he sought to withdraw it, was such that he should not
have been held to be mentally competent at the time.
[40]
I note that, in respect of the law of contract,
the law is still in the course of development when it comes to mental
incompetence. In particular I refer to Waddams The Law of Contracts, 6th
ed, Canada Law Book, Toronto, at paragraphs 657 to 663 and Swan, Canadian
Contract Law, 2nd ed., LexisNexis, at paragraphs 9.289 to 9,291.
[41]
However, given that the evidence does not
support the finding that the Applicant lacked the mental capacity at the
relevant time to request voluntary release, and given that this issue was not
raised during the grievance, I find that it is unnecessary for me to deal
further with this point.
Determination on a CAF Basis
[42]
The Chief of the Defence Staff stated that the
matter was to be determined on a CAF-centred basis. At page 6 of the decision
under review he wrote:
The The Committee found that the B Comd’s
recommendation to deny the withdrawal of your voluntary release without any
material change in fact was inconsistent with his previous recommendation to
post you to the SPHL. On the face of it, I agree. The consideration of a
request to cancel a voluntary release is different from the initial request for
a voluntary release. An initial request comes from the member and is
member-centered, that is, it is the member who is seeking to end their
relationship with the CAF. However, a request to cancel a voluntary release
is CAF-centered; it is the CAF who consider what they need and whether they require
the services of the member requesting the cancellation. [Emphasis
Added]
[43]
This is to be contrasted, as previously noted,
with the decision of the Grievance Board that
“. . . .a more compassionate and consistent
approach would have been to allow the grievor to withdraw his voluntary release
and post him to the SPHL.”
[44]
I will review the adopting by the Chief of the
Defence Staff of a CAF-centred basis for his decision on the basis of
correctness.
[45]
The National Defence Act, RSC 1985, C.
N-5, section 35 provides that all soldiers are at all times liable to perform
any lawful duty:
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33. (1) The
regular force, all units and other elements thereof and all officers and
non-commissioned members thereof are at all times liable to perform any
lawful duty.
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33. (1) La
force régulière, ses unités et autres éléments, ainsi que tous ses officiers
et militaires du rang, sont en permanence soumis à l’obligation de service
légitime.
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[46]
The Canadian Human Rights Act, RSC 1985,
C. H-6, subsection 15(9) provides an exemption respecting member of the
Canadian Forces:
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15.(9) Subsection
(2) is subject to the principle of universality of service under which
members of the Canadian Forces must at all times and under any circumstances
perform any functions that they may be required to perform.
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15.(9) Le
paragraphe (2) s’applique sous réserve de l’obligation de service imposée aux
membres des Forces canadiennes, c’est-à-dire celle d’accomplir en permanence
et en toutes circonstances les fonctions auxquelles ils peuvent être tenus.
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[47]
The National Defence Act, subsection
18(1) provides for the appointment of a Chief of the Defence Staff who is
charged with the control and administration of the Canadian Forces:
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18. (1) The
Governor in Council may appoint an officer to be the Chief of the Defence
Staff, who shall hold such rank as the Governor in Council may prescribe and
who shall, subject to the regulations and under the direction of the
Minister, be charged with the control and administration of the Canadian
Forces.
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18. (1) Le
gouverneur en conseil peut élever au poste de chef d’état-major de la défense
un officier dont il fixe le grade. Sous l’autorité du ministre et sous
réserve des règlements, cet officier assure la direction et la gestion des
Forces canadiennes.
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[48]
The Courts have discussed the principle of
Universality of Service wherein a soldier must be ready to serve at all times
in any place or in any conditions. Noël J. of this Court in Irvine v Canada
(Canadian Armed Forces, 2003 FCT 660, has described that principle at
paragraphs 15 and 16.
[15] Universality of service is the term
given to a set of principles which govern employment of members of the CAF. The
three essential principles are: 1) whatever their trade or profession might be,
members of the CAF are soldiers first and foremost; 2) the duty of soldier is
to be ready to serve at all times in any place and in any conditions; 3) the
duty is universal in that it applies to all members of the CAF. The general
duties of a soldier are found in sections 31 and 33 of the National Defence
Act, R.S.C. 1985, c. N-5, and read:
. . .
[16] The universality of service principle
has been a contentious policy since the mid-1980's. However, in 1993 and 1994,
the Federal Court of Appeal, in the trilogy consisting of Canada (Attorney
General ) v. St. Thomas and Canadian Human Rights Commission (1993), 109
D.L. R. 671 ("St. Thomas"), Canada (Human Rights
Commission) v. Canada (Armed Forces); Husband, mise en cause, [1994]
3 F.C. 188 ("Husband"), and Canada (Attorney General) v.
Robinson, [1994] 3 F.C. 228 ("Robinson"), confirmed the
universality of service as a bona fide occupational requirement
("BFOR"). The principle was also reaffirmed by this Court in 1996 in Canada
(Attorney General) v. Hebert et al. (1996), 122 F.T.R. 274 ("Hebert").
[49]
In Jones v Canada (Attorney General),
2009 FC 46, de Montigny J. wrote that the purpose of the National Defence Act
is to provide for the management, direction and administration of the Canadian
Forces and that it is necessary to have broad discretion is assessing
employability. He wrote at paragraph 25:
Moreover,
the purpose of the National
Defence Act is to
provide for the management, direction and administration of the CF. More
specifically, the CF has been empowered with the discretion to release members
where their medical restrictions impact upon their ability to serve and they
cannot meet bona
fide occupational
requirements. This is not a polycentric issue, but it is more akin to
litigation between two parties. Once again, this factor suggests a fair
amount of deference for the decisions made by the DMCA. Indeed, the
necessity for the CF to have broad discretion in assessing employability and
possibly releasing members is recognized in section 15 of the Canadian Human Rights Act, R.S. 1985, c. H-6, which makes the
need to accommodate members subject to the Universality of Service principle.
[50]
The point made by the Chief of the Defence Staff
is an important one: the Applicant is, in effect, seeking to be re-hired, thus
the Applicant is to be considered on the same basis as if he were become a new
recruit. On that basis, given the Applicant’s medical history and work ethic
history, he is not a desirable recruit. Simply because he may receive better
medical care within the Canadian Forces than outside the Forces is insufficient
to hire him.
[51]
I find that the basis for deciding this matter
from a CAF-centred basis is both correct and reasonable.
Did the Applicant Suffer any
Discrimination or Harassment due to his Medical Condition
[52]
This issue has already been discussed. I have
found nothing in the record that would support a finding that the Applicant
suffered any discrimination or harassment due to his medical condition.
Has the Applicant Demonstrated that a Charter
Breach has occured
[53]
The Applicant did not raise a Charter
issue during the grievance process. The Charter was raised in the
Applicant’s Memorandum with respect to the Minister’s letter stating that once
the effective date of release has passed, there is no mechanism available to
cancel it (paragraph 10 of his Memorandum). He cites section 24(1) of the Charter.
Further, at paragraphs 22 to 31 of his Memorandum the Applicant cites sections
7, 12, 15(1) and 24(1) of the Charter as well as the Canadian Human
Rights Act, supra.
[54]
It is trite law that the Applicant bears at
least the initial burden of demonstrating that his Charter rights have
been affected. The Applicant has simply failed to do so.
[55]
In respect of section 7 of the Charter,
the Applicant bears the burden of proving that he has been deprived of life, liberty
or the security of the person. The Applicant has simply failed to demonstrate
any deprivation of such an interest. The analysis stops there (Blencoe v BC
Human Rights Commission), [2000] 2 S.C.R. 307 at paragraph 47.
[56]
In respect of section 12 of the Charter,
there is a high threshold in proving that a person has been subjected to any
cruel and unusual treatment or punishment (Charkaoui v Canada (Minister of
Citizenship and Immigration), [2007] 1 S.C.R. 390 at paragraphs 95-96). No
such proof has been offered here.
[57]
In respect of section 15 of the Charter,
the Applicant must demonstrate that he was discriminated against because of his
mental state in a contextual basis (Withler v Canada (Attorney General)),
[2011] 1 S.C.R. 396 and paragraphs 29-40. There is nothing in the record to
support such a finding.
[58]
The Supreme Court of Canada has recently
reviewed Charter allegations in Doré v Barreau du Québec [2012] 1
SCR 395, where Abella J. for the Court, wrote on this subject at paragraphs 45
to 58, and again in Loyola High School v Quebec (Attorney General) 2015
SCC 12, she wroteat paragraphs 3 and 4 and 39-42, that the Court should not
adopt a correctness standard in every case that implicates Charter
values. The discretionary decision maker is required to proportionately balance
Charter protections to ensure that they limit no more than is necessary
the applicable statutory objectives that the decision maker is obliged to
peruse.
[59]
In the present case I find nothing on the record
that would engage Charter values or any right protected under the Human
Rights Act. It would be needless for this Court to engage on an inquiry
into the Charter or that Act where no proper foundation has be
laid.
CONCLUSION AND COSTS
[60]
In conclusion, I find that the Applicant has
failed to demonstrate any basis upon which the Court should set aside the Chief
of the Defence Staff’s decision. The application for judicial review will be
dismissed.
[61]
Costs will be awarded to the Respondents. They
may be taxed on a Column III basis or, in the alternative the Respondents may
elect to receive a lump sum of $3000.00 inclusive of all disbursements and
taxes.
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