Docket: T-121-16
Citation:
2016 FC 1206
Ottawa, Ontario, October 31, 2016
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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BEVERLY
KLECKNER
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Applicant
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And
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ATTORNEY
GENERAL OF CANADA
(CANADIAN ARMED
FORCES)
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The Applicant, Ms. Beverly Kleckner, is a
Captain in the Canadian Armed Forces [CAF] and has served as a Health Care
Administrator in the Health Services Group Headquarters since June 2008.
[2]
In November 2012, the CAF directed Captain Kleckner
to undergo a psychosocial assessment, as part of the Periodic Health
Assessment, to ensure her capability for deployment. She refused to undergo the
assessment on the basis that the CAF would not provide her with the parameters that
a CAF mental health provider would use to consider a member unfit. She also
requested the ability to consult the physician of her choice. Because of her
refusal to undergo the assessment, the CAF downgraded Captain Kleckner’s medical
category to “unfit to serve”.
[3]
In February 2013, Captain Kleckner brought an
urgent motion seeking injunctive relief before the Ontario Superior Court of
Justice [ONSC]. In her motion, Captain Kleckner sought a declaration that the referral
by the CAF directing her to attend the psychosocial assessment was of no force
and effect. She also sought a further declaration that she had the right to
choose her own health care provider for the purpose of any medical treatment or
assessment that she might be required to undergo by the CAF, including the psychosocial
assessment. Captain Kleckner’s motion was heard on an interim basis by Justice
Ratushny, who ordered that the assessment be cancelled and that, pending the
hearing of the motion, the CAF not take any action whatsoever in respect of the
November 2012 referral which might affect her medical category. Justice
McKinnon subsequently heard the motion over the course of four (4) days, ending
in November 2013. On January 15, 2014, he dismissed the injunctive motion and
stayed the underlying action pending Captain Kleckner exhausting her rights in
accordance with the National Defence Act, RSC 1985, c N-5 [NDA] (Kleckner
v Canada (Attorney General), 2014 ONSC 322) [Kleckner].
[4]
In June 2014, Captain Kleckner submitted a
complaint to the Canadian Human Rights Commission [Commission] in which she
alleged that, by downgrading her medical category to “unfit
to serve”, the CAF discriminated against her in employment, based on the
ground of perceived disability, contrary to sections 7 and 10 of the Canadian
Human Rights Act, RSC 1985, c H-6 [CHRA].
[5]
Upon receipt of the complaint, the Commission
advised the parties that paragraph 41(1)(a) of the CHRA might apply to
the complaint because another grievance or review procedure might be available.
The Commission’s Resolution Services Division subsequently prepared a Section
40/41 Report based upon Captain Kleckner’s allegations and the CAF’s response, confirming
that the Commission would not deal with the complaint because the complainant
had failed to exhaust grievance or review procedures that were otherwise
reasonably available to her. The Commission then gave both parties the
opportunity to respond to the report.
[6]
In a decision dated December 23, 2015, the
Commission decided not to deal with Captain Kleckner’s complaint pursuant to paragraph
41(1)(a) of the CHRA. The Commission based its decision on the
determination that Captain Kleckner had failed to exhaust the CAF’s grievance
procedures that were otherwise reasonably available to her. The Commission’s
decision being quite short, the Section 40/41 Report constituted the
Commission’s reasoning for the decision (Sketchley v Canada (Attorney
General), 2005 FCA 404 at para 37).
[7]
Captain Kleckner now seeks judicial review of
the Commission’s decision. She argues that the Commission erred in finding that
the CAF’s grievance procedure was “reasonably
available” as per paragraph 41(1)(a) of the CHRA.
[8]
For the reasons set out below, the application
for judicial review is dismissed.
II.
Issue
[9]
Although Captain Kleckner raised a number of issues
in her written submissions, the sole determinative issue in this case is
whether the Commission’s decision not to deal with her complaint is reasonable.
III.
Standard of review
[10]
The standard of review with respect to decisions
by the Commission not to deal with complaints pursuant to subsection 41(1) of
the CHRA is reasonableness (Mun v Canada (Attorney General), 2016 FC 94
at para 14 [Mun]; Andrews v Canada (Attorney General), 2015
FC 780 at para 20 [Andrews]; English-Baker v Canada (Attorney
General), 2009 FC 1253 at para 22). This standard of review applies to both
the decision-making process and the result (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47 [Dunsmuir]).
[11]
When reviewing a decision on the standard of
reasonableness, the Court is concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process” and “whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir at para 47;
Andrews at para 21).
IV.
Analysis
[12]
Captain Kleckner submits that the Commission’s
decision not to deal with her complaint is unreasonable because it failed to
consider that, in certain cases, such as hers, the CAF’s grievance process does
not provide an adequate alternative remedy. In particular, she argues that the
CAF’s grievance process is unfair in that it lacks independence and
impartiality. In support of her argument, she asserts that the Military
Grievances External Review Committee [Grievance Committee], which advises the
Chief of Defence Staff [CDS], as the Final Authority in the grievance process,
is comprised of serving or former members, with the exception of the Chair and
Vice-Chair. In addition, the individuals who required her to undergo a psychosocial
assessment will ultimately be involved in advising the Grievance Committee. Captain
Kleckner further alleges that she will be required to share her medical
information with her Commanding Officer and supervisors, as the CAF’s grievance
process requires that all grievances pass through the Commanding Officer, and
at times, through the various chains of command prior to getting to the
Grievance Committee or the Final Authority. She also fears that she will be
unable to defend her grievance since there is no mechanism for her to obtain an
order requiring the CAF to disclose her medical records. She argues that she
requires communication of her entire medical record in order to demonstrate
that her fitness for duty has never been an issue.
[13]
Captain Kleckner further submits that the CAF’s
grievance process does not constitute an adequate remedy since the CDS, as the
Final Authority in the CAF’s grievance process, does not have the authority,
through ex gratia payments, to grant monetary compensation for damages.
[14]
Captain Kleckner also maintains that the NDA
does not limit the Applicant to the CAF’s grievance process as the only means
of redress, basing herself on the language of subsection 29(1) of the NDA. In
other words, the CAF’s grievance process is not mandatory and is but one of the
options for redress contemplated by the NDA.
[15]
Finally, Captain Kleckner asserts that the
Commission committed a number of errors and failed to consider her submissions
in addition to improperly assigning a “Protected B” security designation to its
decision.
[16]
Paragraph 41(1)(a) of the CHRA provides
that the Commission may decline to deal with a complaint if it appears to the
Commission that the complainant ought to exhaust grievance or review procedures
otherwise reasonably available. This Court has indicated that the Commission’s
decision not to deal with a complaint should be only exercised in “plain and obvious cases” (Mun at para 16; Hicks
v Canada (Attorney General), 2008 FC 1059 at para 22; Canada Post Corp v
Canada (Canadian Human Rights Commission) (re Canadian Postmasters and
Assistants Assn) (1997), 130 FTR 241 (FTD) at para 3 [Canada Post Corp]).
[17]
In deciding whether a complaint falls within the
scope of paragraph 41(1)(a) of the CHRA, the Commission must decide:
a)
whether the grievance or review procedure was
“reasonably available”; and
b)
whether the complainant “ought” to exhaust the
procedure before filing a complaint under the CHRA;
(Mun at para 17; Canada Post Corp at para
6).
[18]
The determination of whether a complainant ought
to have exhausted an alternative procedure is subjective and involves the
exercise of discretion. The scope of judicial review is thus narrow (Mun
at para 17; Bergeron v Canada (Attorney General), 2013 FC 301 at para 39
[Bergeron]; Canada Post Corp at paras 4 and 6).
[19]
Moreover, in deciding not to deal with a
complaint, the Commission must be satisfied, pursuant to the terms of
subsection 42(2) of the CHRA, that the failure to exhaust the alternative
process is attributable to the complainant and not to another (Mun at
para 18).
[20]
Bearing in mind these principles and in
particular, the discretionary nature of the Commission’s decision, I find the
Commission’s decision to be reasonable.
[21]
The Commission reviewed and addressed all of the
arguments raised by Captain Kleckner, which for the most part, were identical
to those raised before this Court and the ONSC.
[22]
Regarding the alleged lack of independence and
impartiality of the CAF’s grievance procedure, the Commission recognized that
the Final Authority was not an independent third party as the CDS (or when
applicable, his designated delegate) is in the employment of the CAF.
Nonetheless, the Commission found that the Final Authority would have been considerably
removed from Captain Kleckner and could have objectively examined the issues
raised by her situation. The Commission also observed that this Court has found
that the “alleged lack of independence in the grievance
process” was not sufficient to overturn the Commission’s decision to
dismiss the complaint. In making this observation, the Commission relied on the
decision of this Court in Bergeron at paragraph 43.
[23]
The Commission’s finding on this point is
supported by the decision of this Court in Mun at paragraph 31, which likewise
found that the CDS or his delegate was considerably removed from the griever’s
case to ensure the independence and impartiality of the grievance process.
Moreover, the finding is consistent with the jurisprudence of this Court which
has repeatedly held that the CAF’s grievance process constitutes an adequate
remedy that must be exhausted before an individual can turn to the courts for
redress (Mun at paras 31 and 32; Moodie v Canada, 2008 FC 1233 at
para 28; Sandiford v Canada, 2007 FC 225 at para 28; Pilon v Canada,
1996 FCJ No 1200 at paras 8 and 9).
[24]
As for Captain Kleckner’s fears that the people responsible
for requiring her to undergo the psychosocial assessment would be involved in
the grievance process, I find that Captain Kleckner’s concerns are both
premature and speculative. Article 8.19 of the Defence Administrative Order and
Directive (DAOD) 2017-1 – Military Grievance Process specifically provides that
a grievor has the right to a fair hearing by an impartial redress authority and
that this right will be undermined if the redress authority is, or appears to
be, predisposed regarding the outcome of the grievance. Furthermore, subsection
7.14(2) of the Queen’s Regulations and Orders for the Canadian Armed Forces
explicitly prohibits an officer from acting as the Initial Authority in the
grievance process if the grievance relates to his or her decision, act or
omission. Consequently, one has to assume that if Captain Kleckner had
initiated a grievance, it would have been conducted in a fair, impartial and
independent manner. If, after commencing the grievance process, Captain
Kleckner was of the view that this was not the case, it would have been open to
her to raise these concerns with the appropriate authorities in the CAF and
afterwards, if necessary, on judicial review. Moreover, if Captain Kleckner
considered that all of her human rights issues had not been addressed through
the CAF’s grievance process, she could then have gone back to the Commission
and asked that her complaint be reactivated.
[25]
Captain Kleckner also raised the argument before
the Commission that there is a power imbalance within the CAF’s grievance
procedure because she is unable to obtain the release of information she needs
and cannot afford the help of a medical expert or legal representative. On this
point, the Commission noted that where an applicant is self-represented,
similar power imbalances exist within the court proceedings and in proceedings
before administrative bodies, such as the Commission. The Commission indicated
that Captain Kleckner, who is self-represented, would likely encounter similar
issues obtaining information and expert medical testimony in all these
proceedings. It also noted that even if the Commission had accepted to deal
with the complaint, the CAF would still have a disproportionate amount of
resources in comparison to those of Captain Kleckner.
[26]
I see no error in the reasoning of the
Commission. Although in certain limited circumstances, there may be a
constitutional right to legal representation, there is no general right to representation
by a lawyer. As stated by Justice Russell of this Court in 893134 Ontario
Inc (Mega Distributors) v Canada (National Revenue), 2008 FC 715 at paragraphs
29 and 30: “the rule of law does not require the
assistance of, or the representation by, legal counsel even where rights and
obligations are at stake”. Representing oneself does not amount to unfairness
or even a breach of procedural fairness, even if afterwards the
self-represented litigant thinks that legal representation might have assisted him
or her in making a better case. To hold otherwise would mean that every
decision involving a self-represented litigant would have to be construed as
procedurally unfair, except in those cases where the ruling was in his or her favor
(Balasingam v Canada (Citizenship and Immigration), 2012 FC 1368 at para
51). If parties may proceed before courts of law without legal representation,
the absence of counsel in the context of a grievance process is even more
acceptable given that the grievance process is intended to be more informal and
accessible.
[27]
As for her inability to obtain her entire
medical file to demonstrate that her medical fitness for duty has never been an
issue, the Grievance Committee has, pursuant to section 29.21 of the NDA, the
power to summon and enforce the attendance of witnesses and the power to compel
the production of documents. Thus, Captain Kleckner could have requested that
the Grievance Committee require the production of her medical file.
[28]
I note that Captain Kleckner alleges that the
CAF withheld part of her medical record. In January 2016, a Senior Privacy
Investigator of the federal Office of the Privacy Commissioner confirmed that Captain
Kleckner had not received all the information she was entitled to, in response
to a complaint she had submitted. However, this is an entirely separate issue.
The procedure under the Privacy Act, RSC 1985, c P-21 is a distinct process,
with a very different purpose and it is governed by a different legislative
framework.
[29]
The Commission also rejected Captain Kleckner’s
assertion that the CDS cannot award monetary compensation for harm done through
ex gratia payments. It relied on the decision issued by Justice McKinnon
who addressed this issue and concluded that recent legislative changes gave the
CDS the discretionary power to award ex gratia payments in certain
cases. The Commission thus found that Captain Kleckner’s human rights complaint
could be addressed through the CAF’s grievance process.
[30]
Although not bound by the decision of Justice
McKinnon, I find it nonetheless persuasive. In examining whether the CAF’s
grievance process constituted an effective alternative remedy to address Captain
Kleckner’s claims for damages for various breaches of the Canadian Charter
of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter],
Justice McKinnon found that the CDS had the requisite authority and
jurisdiction to compensate individuals whose Charter rights might have
been infringed (Kleckner at para 47). I also note that this Court has
also recently confirmed that the CDS may resort to ex gratia payments to
award compensation (Lafrenière c Canada (Autorité des griefs des Forces
canadiennes), 2016 CF 767 at para 67; Chua v Canada (Attorney General),
2014 FC 285 at para 13). Captain Kleckner has not persuaded me that the CDS
could not have exercised his discretion to award her an ex gratia
payment in recognition of her alleged pain and suffering, had she lodged a
grievance.
[31]
Captain Kleckner also argued before the
Commission that if she had recourse to the grievance process, her right to an
appeal would be negated. In my view, the Commission properly found that while a
decision by the Final Authority in the grievance process is final and binding, judicial
review before the Federal Court is available pursuant to section 29.15 of the
NDA. Captain Kleckner’s situation is not unlike that of many other individuals
who find themselves involved in other administrative law procedures where there
is no right of appeal. Given the deference afforded to administrative tribunals
and their respective areas of expertise, judicial review is often the only
relief available against decisions made by administrative decision-makers or
tribunals.
[32]
The Commission also addressed Captain Kleckner’s
argument that the grievance procedure was not mandatory. This Court responded
to this very argument in paragraph 23 of Mun, finding that “regardless of whether the process is mandatory or voluntary,
the Commission was nevertheless entitled to decide if the grievance process was
a more appropriate forum to deal with the Applicant’s complaint before being
brought to the Commission”.
[33]
The Commission also found, pursuant to subsection
42(2) of the CHRA, that Captain Kleckner was solely responsible for not
exhausting the CAF’s grievance procedure. The Commission noted that: 1) Captain
Kleckner had ample opportunity to file a grievance as she had been given a time
extension up to and including November 28, 2014; 2) the decision of the ONSC informed
Captain Kleckner that she should file a grievance before proceeding with legal
action in that venue; and 3) the Commission had also informed Captain Kleckner
of paragraph 41(1)(a) and subsection 42(2) of the CHRA and asked her to
use the grievance process which was reasonably available to her. The
Commission’s conclusion was reasonable given that the record supports the facts
upon which it relied.
[34]
As for the other issues raised by Captain
Kleckner, I find that Captain Kleckner has not demonstrated a breach of
procedural fairness by the Commission. The Commission afforded both parties the
opportunity to make representations on the Section 40/41 Report. While Captain
Kleckner alleges that the Commission did not consider all of her evidence and would
have preferred the Commission’s decision to be more exhaustive, it is trite law
that a decision-maker is presumed to have reviewed all the evidence (Anderson
v Canada (Attorney General), 2013 FC 1040 at para 55). Moreover, the Supreme
Court of Canada found in Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraphs 12,
14, 16 and 22, that a decision-maker is not required to make explicit findings
on every element leading to its conclusion. It also found that the adequacy or
sufficiency of reasons does not fall under procedural fairness and the
corresponding correctness standard of review, but rather is an issue commanding
a reasonableness analysis. This principle is equally applicable to decisions
made in the context of the Commission’s determination of whether or not it
should deal with a complaint (Berberi v Canada (Attorney General), 2013
FC 99 at paras 18 and 19).
[35]
Finally, Captain Kleckner submitted before this
Court that the Commission erred in assigning a “Protected B” security
designation to its decision. She is of the view that the Commission was
attempting to prevent it from being released to the public. There is no merit
to this argument. The purpose of the designation is to indicate that the decision
contains personal information. In any event, this argument is now moot as the
decision is now part of the public record.
[36]
In conclusion, the Commission enjoys a certain
level of discretion in deciding whether or not to deal with a complaint on the
basis that a complainant ought to exhaust grievance or review procedures
otherwise reasonably available (Bell Canada v CEP (Communications, Energy
and Paperworkers Union of Canada), [1998] FCJ No 1609 at para 51). I
understand that the effect of this judgment will be that Captain Kleckner will
be left without recourse, as the deadline of November 28, 2014 to submit her
grievance has long passed. The CAF may perhaps waive this delay. In any event,
I consider that Captain Kleckner had ample opportunities and sufficient notice
to initiate the grievance process. Captain Kleckner not only knew that the CAF’s
grievance process was available, she also had the benefit of the decision of
the ONSC, which informed her that she needed to exhaust her rights in
accordance with the NDA. I agree with the ONSC that there are no exceptional
circumstances that would justify departing from the normal grievance process (Kleckner
at para 66).
[37]
As a result, the Commission’s decision not to
deal with her complaint is reasonable and falls within the range of possible,
acceptable outcomes which are defensible both in facts and in law (Dunsmuir
at para 47). For all these reasons, the application for judicial review shall
be dismissed with costs in the amount of $3,100.00.
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