Docket: T-2361-14
Citation:
2016 FC 32
Ottawa, Ontario, January 8, 2016
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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CORPORAL J.J. HIGGINS
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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]
This is a judicial review of the decision dated
September 22, 2014 by Colonel J.R.F. Malo of the Canadian Armed Forces (CAF)
acting as Final Authority (FA) in which the Applicant was granted most, but not
all, of the redress he sought in his grievance dated December 5, 2011.
[2]
At the commencement of the hearing a motion to
change the name of the Respondent to the Attorney General of Canada was granted.
Otherwise, there were no preliminary matters.
I.
Background
[3]
The Applicant is a corporal in the CAF who, at
the time of the incidents at issue, was serving as a Second Lieutenant in the
Reserve Force Cadet Instructor Cadre for the Cadet Administration and Training
Service (COATS). COATS officers act as adult supervisors to non-military youth
members of the Cadet program. The precipitating event was his suspension from
40 (Snowbird) Royal Canadian Air Cadets Squadron (RCACS) on August 30, 2011.
[4]
On September 6, 2011 the Applicant filed a
complaint of harassment and abuse of authority against his Commanding Officer
(CO) and another officer, both of whom had had discussions with him concerning improper
interactions he was alleged to have engaged in with cadets. His alleged failure
to correct his actions precipitated his suspension. Unsatisfied with the
report of the investigation of his complaint, the Applicant filed a grievance
on December 5, 2011. He transferred to the Regular Forces (RF) the following
day.
[5]
The Applicant has persistently denied all
allegations which led to his suspension. He grieved both the fact that he was
suspended and the actions of his CO. He alleged the CO had failed to adhere to
basic tenants of the principles of military procedural fairness and conducted a
flawed investigation into his harassment complaint.
II.
The Allegations, Complaint, and Grievance
A.
The Allegations against the Applicant
[6]
There were various allegations against the
Applicant. They fall into two broad categories, one being inappropriate
activities or conduct with cadets and the other being disrespecting or going
outside of the Chain of Command (COC).
[7]
During 2010 and 2011, the Applicant’s CO
received a variety of complaints from parents of cadets about the Applicant’s
conduct with their cadets outside of regular hours including such things as
going for coffee with cadets, emailing cadets, contacting them through social
networking sites, exchanging emails with them and inviting them to fly with him
on his airplane. He also befriended some of the parents, which was viewed by
his COC as an attempt to circumvent the requirement that the Applicant not
engage with cadets outside of work hours. There was an allegation that the
Applicant served alcohol to an underage cadet at the Applicant’s home and then
allowed that cadet to drive home. Another allegation was that the Applicant
took five cadets swimming after his request to do so was denied by the civilian
oversight committee.
[8]
In particular the Applicant denied using social
media to contact the cadets. He vigorously denied having cadets to his house,
serving them alcohol and watching a movie with them. As one of the complaints
was that the Applicant was contacting cadets through his Facebook account, the
Applicant demonstrated to his CO, that no cadets were friends on his Facebook
account. The CO confirmed this to the Applicant by email on March 17, 2010.
[9]
The Applicant was warned both verbally and in
writing on a number of occasions to cease engaging in the conduct alleged
although he never admitted to having so engaged. There were also concerns
expressed to him that he was acting outside the COC by speaking with parents
and others directly about internal COATS matters.
B.
The Complaint
[10]
The Applicant’s complaint was submitted to the
CO of Regional Cadet Support Unit (Prairie) (RCSU (Pra)). It alleged his CO
and ACO were procedurally unfair to him, which resulted in harassment and abuse
of authority in that they failed to provide him with specifics or evidence to
support the various allegations regarding his interactions with cadets.
[11]
The Training Services Officer RCSU (Pra) was
assigned to investigate the complaint. On October 3, 2011 the Applicant
submitted further information and documentation to support his complaint including
emails and accounts of anecdotal evidence.
[12]
On November 1, 2011 a 4 page investigation
report was released. It acknowledged the Applicant’s complaints of harassment
and procedural fairness but did not directly address them. The report found the
Applicant had demonstrated conduct deficiencies over a long period of time and “given the number of times he had been counselled between 2
Mar 10 and 16 Feb 11 it is reasonable to expect that on 30 Aug 11 2Lt Higgins
would have been aware of the reasons that he was being asked to leave the
squadron”. The investigation recommended, amongst other things, that
the reasons for his removal be reiterated to the Applicant and that he be
placed on Initial Counselling (IC) regarding expectations about his
responsiveness to the direction of superior officers and his personal
relationships with cadets. IC is a form of administrative action meant to formally
record and provide the mentorship framework necessary to address conduct deficiencies.
[13]
The investigation concluded that the Applicant had
failed to respond to repeated attempts to assist him in overcoming the
deficiencies noted. The report found the Applicant should be allowed to
continue to serve, but in another unit as there had been an “irreversible effect on the trust between him and the CO.”
(sic)
C.
The Grievance
[14]
On December 5, 2011, the Applicant initiated a
grievance contending that his COC did not adhere to basic principles of
procedural fairness, did not properly investigate his harassment complaint,
lied to the officer who reviewed his complaint and improperly distributed
protected information about him. The grievance included a statement that
the errors could not be cured by a subsequent review.
[15]
Effective December 6, 2011, the Applicant
re-enrolled in the regular component of the CAF. Ultimately it was determined
by the Chief of Defence Staff (CDS) that this action rendered moot many of the
issues raised in the Applicant’s grievance.
[16]
On April 16, 2012, as a result of new
information received through the disclosure process, the Applicant amplified
his grievance to add requests that certain communications and documents be
removed from his files and destroyed and that the CO and other officers of
RCACS be subjected to administrative and/or disciplinary measures because
confidential information about the Applicant was distributed improperly.
[17]
The amplified grievance is the one which the CDS
determined. It is the document underlying the decision which is the subject of
this review application.
III.
The CAF Grievance Procedure
[18]
The Applicant has alleged procedural
unfairness. It is appropriate therefore to review the nature of the grievance
procedure established by the CAF. The right to grieve and the grievance
procedure prescribed for the CAF is set out in section 29 of the National
Defence Act, R.S.C, 1985, c. N-5 (Act) and chapter 7 of the Queen’s
Regulations and Orders for the Canadian Forces. They are supplemented by a
Defence Administrative Order and Directive (DAOD) being DAOD 2017 - 1, Military
Grievance Process which is an order that applies to all officers and
non-commissioned members of the CAF. As such it is an integral part of the
grievance system.
[19]
There is also a Grievance Manual issued by the
Director General, Canadian Forces Grievance Authority (DGCFGA) which was
developed to assist in the preparation and submission of grievances. The
manual explains what may and may not be grieved, the roles played by various
parties in a grievance, including the Canadian Forces Grievance Board (CFGB) as
it then was but which is now known as the Military Grievances External Review
Committee. The manual sets out, in a fair level of detail, the process which
will be followed with an explanation of each step. The manual clearly states
it is not a legally authoritative document and has no force of law. It is
merely a guide.
[20]
The CAF grievance procedure is thorough and
detailed as one would expect of a military organization. There are only two
levels within the process with the authority to grant or deny a grievance. One
is the Initial Authority (IA), which is usually the CO and the other is the FA,
which is the CDS or, as in this instance, his delegate. If a grievor is
dissatisfied with the decision of the IA they have the right to have the matter
sent to the CDS for final determination. Assisting the CDS is the DGCFGA which
provides analysis of the grievance and makes non-binding recommendations. On
occasion, as was the case here, the CFGB also makes a report to the CDS. The
CFGB is an external, independent, and arm’s-length legal body mandated under
the Act to investigate and review grievances referred to it by the CDS. The
CFGB provides findings and recommendations to the CDS who, under subsection
29.13(1) of the Act, is not bound by any finding or recommendation but shall
provide reasons if they do not act on a finding or recommendation of the CFGB.
[21]
The grievance process with which the IA and CDS
engage does not include hearing witnesses, examining or cross-examining on
affidavits or documents. It is purely a written, documentary process where all
the evidence considered is in writing. A procedural fairness requirement is
contained in DAOD 2017-1, which orders that “the
grievor has the right to be provided with all relevant documents and other
information to be considered by a redress authority, to comment on this
information, and to receive a well-explained, timely and impartial
determination of their grievance.”
[22]
The documentary process that was followed in
this case was extensive. It included creating and sending to the Applicant at
both the IA and FA stages disclosure documents and a grievance synopsis then
receiving from him one or more detailed written responses. A similar process
occurred at the CFGB stage. Throughout the entire process there was a lively
exchange of documents between the Applicant and whoever was involved in the
process at that time as the reviewing authority.
[23]
The Applicant’s procedural complaint is, and has
been from the beginning of the allegations against him, the fact that he has
never received the names of the complainants or names of the cadets with whom
he is alleged to have improperly engaged. He also says he never received the
dates upon which the events in question took place. He still denies any
improper activities occurred.
IV.
Initial Authority Decision
[24]
The Applicant was provided with a grievance
synopsis on May 2, 2012 to which he filed a response on June 1, 2012.
[25]
The IA reviewed the grievance as well as
comments of superiors in the COC and of senior staff at Headquarters. The
comments were disclosed to the Applicant on May 2, 2012. On June 6, 2012 the
Applicant’s reply to that disclosure was received.
[26]
On July 11, 2012 the IA released his decision. With
respect to the Applicant’s continuing complaint that he was not provided with
specifics such as dates, names and locations for the events about which he had
received counselling the finding was that he had been verbally briefed on a
number of occasions and had received the “proper and
appropriate level of procedural fairness”.
[27]
The decision reviewed the very specific
complaints made by the Applicant both initially and as amplified. While some
of the Applicant’s contentions were supported, the majority were not. The
decision was that the Applicant had not established to the satisfaction of the
IA that he was grieved. The redress requested was not granted.
[28]
The Applicant was advised of his right to
forward the grievance to the CDS within 90 days. On August 7, 2012 he provided
a response to the IA decision. On August 17, 2012 he requested review by the
CDS.
V.
Canadian Forces Grievance Board Findings &
Recommendations
[29]
On January 3, 2013, the Applicant’s grievance
was sent by the CDS as a discretionary referral to the CFGB. On May 30, 2013, Findings
and Recommendations (F&R) by the CFGB recommending that the grievance be
partially upheld were released. On June 4, 2013, the CFGB sent the F&R to
the Applicant. It also disclosed to him his grievance file of 826 pages to
assist him in preparing for the CDS decision. He was advised that after
reviewing the materials he might wish to provide comments and/or other
pertinent documents to the DGCFGA for consideration by the CDS. The F&R
largely, but did not entirely, upheld the Applicant’s grievance.
[30]
The issue as stated by the CFGB was:
. . . whether the decision to post the
grievor from his unit was justified and in accordance with the policy, and
whether the Remedial Measure he was issued was appropriate.
[31]
The CFGB determined that as the Remedial Measure
of an IC took place after the Applicant had already transferred to the RF it
was of no force or effect and should be removed from the Applicant’s personnel
files.
[32]
The CFGB concluded that the initial investigation
of the Applicant’s complaint was fundamentally flawed for several reasons. It
found the conclusions were not justified, transparent, intelligible, or
understandable, therefore the investigator’s conclusions were unreasonable.
The CFGB recommended the investigation report be set aside and expunged from
all unit files.
[33]
The CFGB reviewed three documents which the
Applicant had asked to be removed from his files. It concluded that there was
no justification to remove them as they were appropriate actions for the CO to have
taken. In addition the CFGB indicated it was not persuaded an apology which
the Applicant sought from the CO and ACO was justified and, in any event, it
had adopted a position against obliging a person to write a letter of apology.
[34]
With respect to the various allegations
involving inappropriate contact with cadets, the CFGB acknowledged they were
poorly handled but had become moot as the Applicant had transferred to the RF.
It did note that the allegation of serving alcohol to a minor had not been
properly investigated and that the CAF may wish to consider whether to pursue the
matter.
[35]
Dealing with the decision to remove the
Applicant from his unit, the CFGB again found the situation had been poorly
handled and was not properly justified as a proper and fair investigation had
not been made. However as result of the Applicant’s transfer to the RF the
CFGB again found this matter to be moot.
[36]
The only recommendation made by the CFGB was
that the CDS partially uphold the grievance by ordering “That the Initial Counselling form and the “Review of [the
Grievor’s] Complaint” along with any reference to those documents be removed
from the Applicant’s personnel file and disposed of in accordance with the
National Archives of Canada Act.”
VI.
Final Authority Decision
[37]
On June 13, 2014 the DGCFGA wrote to the
Applicant to confirm the accuracy and completeness of the information it held
and to confirm its understanding of the issues being grieved and the redress
sought. The Applicant was provided with the information that the CDS would be
considering and was invited to provide a response if desired. A synopsis of
the grievance to that date was enclosed with the letter. The synopsis included
a review of the redress sought, the relevant facts including alleged activities
with cadets, the findings of the investigation report, the fact that the IA
synopsis had been disclosed to the Applicant who had received the IA decision
as well as the CFGB F&R. Within the disclosure package were copies of
emails between and amongst various members of the COC concerning the Applicant
and the allegations against him as well as internal notes to file detailing
various meetings and discussions about the matter.
[38]
The grievance synopsis set out the applicable
laws and policies and reviewed them in the context of the Applicant’s
grievance. The summary and recommendation provided in the synopsis was
somewhat different than but largely consistent with the F&R of the CFGB.
The recommendation to the CDS was to partially grant the redress by removing
and destroying documentation related to the investigation and also the three
records of discussion from all files and remove the Initial Counselling but
issue a Recorded Warning instead. Major Vallée, the analyst writing the
synopsis, recommended the CDS order a military police investigation on the
allegation of providing alcohol to minors.
[39]
The Applicant provided a thorough response to
the synopsis and disclosure on July 7, 2014.
[40]
On September 22, 2014 the CDS provided his
decision (Decision). He indicated he had conducted a de novo review
setting aside previous decisions and starting afresh. The CDS confirmed that
he reviewed the entire grievance file including the most recent reply
information received from the Applicant. He reviewed the nature of the
grievance and the redress being sought and decided that, to a certain extent,
the Applicant had been aggrieved but not for the reasons put forward by the
Applicant.
[41]
The CDS decided to partially grant the redress
sought as the Applicant had been aggrieved to a certain extent. He looked at
four issues:
•
whether the Applicant’s suspension was
appropriate;
•
whether the investigation was properly
conducted;
•
whether procedural fairness was applied from
March 2, 2010 until December 12, 2011; and
•
whether the remedial measure issued was
justified and legal.
[42]
The CDS found the decision to transfer the
Applicant to another unit was not the proper way to deal with the situation as
the proper remedial measures procedure had not been followed, but, the matter
was moot. The CDS found the CO RCSU (Northwest (NW)) reacted promptly and
according to regulation by ordering an investigation, but he did not provide
written terms of reference, leaving the investigating officer without proper
guidance. As a result, the CDS found the investigation into the harassment
complaint conducted by RCSU (NW) was flawed and appeared to be biased. The
redress was granted and the report of the investigation together with any
related documents were to be removed from all files and destroyed.
[43]
With respect to procedural fairness, the CDS
found the Applicant had been treated fairly throughout. He had been made aware
of deficiencies and counselled on how to improve his behaviour. He received at
every stage a chance to explain his actions and all available documentation was
disclosed to him together with a fair chance to comment each time.
[44]
With respect to the remedial measure, the CDS
found it to be well documented that the Applicant was advised in person or via
email on nine occasions about the same standard of conduct deficiencies which
he did not correct. The CDS reviewed the nature and purpose of a remedial
measure and the factors to be considered in both initiating a remedial measure
and selecting the appropriate measure. The CDS agreed a remedial measure was
required but that the Applicant’s chain of command had been “overly accommodating” by not acting quickly enough. He
found the Initial Counselling was issued without proper authority as it was
done after the Applicant’s transfer to the Regular Forces, therefore he quashed
it. The CDS then determined that, at the very least, a Recorded Warning was
appropriate to administer.
[45]
The CDS found that because the allegations with
respect to providing alcohol to minors had not been properly investigated there
would always be “some doubt” which could have a
negative impact on both the Cadet organization and the Applicant. Therefore,
he felt that matter should be re-considered. The CDS therefore directed that
the appropriate CO contact the local military police unit and explore the value
in opening an investigation with respect to the allegation that the Applicant
provided alcohol to a minor.
[46]
The CDS directed the three documents about which
the Applicant complained be removed from all files because keeping them in the
file would go against the spirit of the directive of the Chief of Military
Personnel with respect to a Unit Personal File, the purpose of which is to
protect CAF members.
[47]
The CDS agreed with the CFGB with respect to not
ordering an apology and that the COC acted appropriately despite committing
administrative errors. He also found it inappropriate for him to deal with
possible administrative and disciplinary measures against the CO or other officers
in the context of the grievance. He preferred to leave the matter of any
performance supervision to the appropriate authorities.
[48]
Dealing with the specific redress sought by the Applicant,
that any policy or procedure calling for disciplinary action based solely on an
allegation be rewritten, the CDS found that the Applicant had not demonstrated
he had been treated unfairly. He also specifically found the policies and
procedures relating to procedural fairness were sound.
[49]
In the result, the CDS directed all the records
of discussion, the Initial Counselling form, the Review of Complaint (the
investigation report) and any reference to those documents be removed from the
unit personnel record and the Applicant’s unit personal record. The removed
documents were to be disposed of in accordance with the Library and Archives
of Canada Act. In all cases once these matters were completed a report was
to be made to the Applicant and the DGCFGA as well as the Applicant’s CO.
[50]
On November 14, 2014, the Applicant filed his
application for judicial review of the Decision.
VII.
Issues
[51]
The Applicant submits the issue is whether it is
appropriate for the Court to quash the Decision and the recommendation provided
therein with respect to issuance of a Recorded Warning.
[52]
The Respondent phrases the issues somewhat differently
but the parties and the Court are in agreement that the issues to be considered
on this judicial review are:
A) Is the decision by the Final Authority reasonable?
B) Did the Final Authority or the CAF breach the rules of procedural
fairness by not providing adequate disclosure and details of the allegations to
the Applicant during the grievance process?
VIII.
Standard of Review
[53]
The first question for the Court to address is
what is the appropriate standard of review for each issue?
A.
Reasonableness of the Decision
[54]
The Federal Court of Appeal has previously held
that decisions of the CDS with respect to grievances are reviewable on the
reasonableness standard (Zimmerman v Canada (Attorney General), 2011 FCA
43 at para 21). In Dunsmuir v New Brunswick, 2008 SCC 9 (Dunsmuir)
at paragraph 57, direction is provided that if the standard of review has
previously been determined it need not be canvassed again. This review will therefore
proceed on the basis that reasonableness is the standard of review for the Decision
and deference is owed to the decision-maker.
B.
“Adequacy of Reasons”
[55]
In oral argument, counsel for the Applicant
raised as an issue that the reasons provided by the CDS were not adequate,
particularly as there was no specific finding of fact that the Applicant
actually engaged in the conduct as alleged. The Applicant also submitted the
standard of review for adequacy of reasons should be correctness. This
position was arrived at with reference to the trial judgment in Rifai v
Canada (Attorney General), 2014 FC 529 (subsequently overturned on appeal) which
referred to paragraph 22 of Tainsh v Canada (Attorney General), 2011 FC
1180, which cited paragraph 43 of Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 to hold that “the
adequacy of reasons may be regarded as one aspect of procedural fairness and
therefore subject to review based on correctness”. However, both Tainsh
and Khosa were decided before Newfoundland and Labrador Nurses' Union
v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (Nfld. Nurses)
in which Justice Abella described the standard of review when dealing with that
part of a decision being challenged on the grounds of “adequacy
of reasons” or, the lack thereof, this way at paragraph 22:
[22] It is true that the breach of
a duty of procedural fairness is an error in law. Where there are no reasons in
circumstances where they are required, there is nothing to review. But where,
as here, there are reasons, there is no such breach. Any challenge to
the reasoning/result of the decision should therefore be made within the
reasonableness analysis. (emphasis in original)
[56]
As Nfld. Nurses is the accepted authority
in dealing with a question of whether reasons are adequate, I will review
whether the reasons provided by the CDS were adequate or not on the basis that it
is part of my review and analysis of the overall reasonableness of the Decision.
C.
Procedural Fairness
[57]
The Applicant has alleged there was a breach of
fairness to him because he did not know the particulars of the allegations
against him. He submits that he did not have even a minimal opportunity to
respond to the allegations because he did not know who complained, with which
cadets he was alleged to have been inappropriately involved, the nature of the
inappropriate conduct, the dates it occurred and where it took place. He also
claims he was not given any reason why such involvement was inappropriate.
[58]
The standard of review for issues of procedural
fairness is correctness. (Mission Institution v Khela, 2014 SCC 24 at para 79 and Moodie v Canada (Attorney
General), 2015 FCA 87 at para 50). However, recent jurisprudence of the
Court of Appeal recognizes that even on a correctness standard when a
decision-maker has considerable experience and expertise the margin of appreciation to be applied is considered
contextually. When the specific statutory context of the decision-maker is
considered it may cause the review to be more like a reasonableness review. (Maritime
Broadcasting System Limited v Canadian Media Guild, 2014 FCA 59 at para
51).
[59]
Most recently, the state of the standard of
review for issues of procedural fairness has been described as “unsettled” and “a
jurisdictional muddle” in Bergeron v Canada (Attorney General),
2015 FCA 160 at paragraph71. Here it is not necessary to try to sort out the “muddle”. I have determined, for the reasons which
follow, that the procedure followed was fair and it was correct, which means it
was also reasonable.
IX.
Positions of the Parties on the Issues
A.
Applicant’s Submissions
(1)
Reasonableness of the Decision
[60]
Counsel for the Applicant asked the Court to
keep in mind that the Applicant was self-represented until after he filed his
application for judicial review at which time he retained counsel to
cross-examine the Respondent’s affiant and then to represent him at the
hearing.
[61]
Counsel also submits there is no evidence
substantiating the events alleged. The Applicant has maintained throughout the
various stages of this matter that he did nothing wrong. He has not admitted to
inappropriate conduct with cadets. There is no agreement that the allegations
are true or that the events in question actually occurred.
[62]
The Applicant submits that what occurred was he was
repeatedly warned for actions which he denied and therefore could not correct;
the “proof” of his misbehaviour is found only in
the repeated warnings he received.
[63]
In support of his position, the Applicant points
to the CFGB F&R that states the initial harassment investigation was fundamentally
flawed, procedural fairness had not been provided as the draft report was not
submitted to the Applicant for comment or review, and the conclusions of the
investigation were found to be unreasonable.
(2)
Adequacy of Reasons
[64]
The Applicant says that although he was
chastised by his superiors for not “correcting”
his behaviour with respect to the cadets, he could not correct something that was
not occurring. Counsel said it is in fact “absurd”
to substantiate the finding of the CDS without the misconduct first being
proven and a specific finding being made by the CDS including recitation of the
underlying particulars and events.
(3)
Procedural Fairness
[65]
The Applicant says that at no time did he
receive adequate particulars to enable him to properly defend himself. He
agrees fraternizing is inappropriate but steadfastly maintains he is not guilty
of it.
[66]
The Applicant relies upon R v Stinchcombe,
[1991] 3 S.C.R. 326 (SCC) for the proposition that he is entitled to know the “who, what, when etc.” He says he did not know the
case he had to answer and it was not clear in the decision whether the CDS, Col.
Malo, knew it either.
[67]
In his written submissions, the Applicant relied
solely upon the foregoing lack of details supporting the allegations to submit
that he did not receive even a minimum level of fairness to which he says he
was entitled. He relies generally on the factors set out in Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (SCC) in
support of that assertion without specifying anything further as to its
application.
[68]
The Applicant also stated in his notice of application
that a de novo consideration (in this case by both the CFGB and the CDS)
cannot save the procedural unfairness which occurred. He cites no authority in
support of that position.
B.
Respondent’s Submissions
(1)
Reasonableness of the Decision
[69]
The Respondent submits that not only is the
decision of the CDS owed a high degree of deference, the Applicant is simply
asking the court to re-weigh the evidence or to be very selective with respect
to the evidence. The Respondent urges the Court to look at the totality of the
evidence as was done by the CDS. In that case, the Respondent alleges there is
more than sufficient evidence upon which the CDS could and did base his
decision.
[70]
Relying on Rompré v Canada (Attorney General),
2012 FC 101 (Rompré) the Respondent submits the CDS is entitled to
significant discretion with respect to grievances and determination of the
appropriate remedies.
(2)
Adequacy of Reasons
[71]
As this issue first arose at the hearing, the
Respondent did not make any written submissions with respect to this allegation
but did say, relying on Dunsmuir, that as the nature of the
grievance process is a specialized process within a specialized body and the
standard of review of the Decision is reasonableness, the reasons are justified
and intelligible.
(3)
Procedural Fairness
[72]
In support of the process having been fair to
the Applicant the Respondent points to the extensive disclosure which took
place and the opportunity provided to, and taken up by, the Applicant at every
critical juncture for input and reply. Additionally, by the time the CDS
considered the matter it was a de novo review and the Applicant had received
either the actual names of the complainants and informants there was enough
information revealed to easily ascertain their identities. All known to him
either professionally or personally.
X.
Analysis
[73]
In addition to the Notice of Application and the
usual Memorandum of Argument and Law from each party, the record before me
included a transcript of the cross-examination of the DGCFGA Grievance Analyst,
Major Michel Vallée, who was responsible for reviewing and providing analysis
of the Applicant’s file to the CDS, as well as an extensive Certified Tribunal
Record containing over 1000 pages, many of which were replicated several times
and interspersed throughout with each disclosure.
A.
Reasonableness of the Decision
[74]
It is well-settled that reasonableness is a
deferential standard in which the Court must recognize that questions which
come before administrative tribunals may not lend themselves to one specific,
particular result, but can give rise to a number of possible, reasonable
conclusions. My review of whether the decision of the CDS is reasonable will
be concerned with determining by a review of the reasons he provided whether
they are justified, transparent and intelligible within the context of the decision-making
process and whether the decision which was rendered falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir at para 47).
[75]
Mr. Justice Noël in Bernath v Canada,
2007 FC 104 (aff’d in Canada v Bernath, 2007 FCA 400) conducted an
extensive examination of the nature of the grievance process established by Parliament
for the Canadian Forces under the National Defence Act and the Queen’s
Regulations and Orders for the Canadian Forces, volume 1,
chapter 7. He found at paragraph 42 that the grievance process is:
…an internal grievance resolution system unique
to the Canadian Forces. The competent authority at each decision-making
level is the superior, in the hierarchical order established within the
Canadian Forces, of the grieving officer or non‑commissioned member. In
fact, there is no independent decision-maker, in the legal sense of the term,
who is called on to decide a dispute between the parties. (my emphasis)
[76]
Under section 18(1) of the Act, the CDS is given
very broad powers in that he is “charged with the
control and administration of the Canadian Forces” subject only to the
regulations and under the direction of the Minister.
[77]
Given this degree of autonomy and the particular
expertise of the CDS within a highly specialized process and unique organization,
it is my view that the degree of deference to which he is entitled is what is referred
to as “a wide margin of appreciation”. In Canada
(Attorney General) v Boogaard, 2015 FCA 150, Stratas, J.A. when dealing
with review of a decision of the Commissioner of the RCMP (which position I
find is a reasonable parallel to that of the Chief of the Defence Staff of the
Canadian Forces) found that the Commissioner was entitled to a very broad
margin of appreciation. In my opinion the same holds true, for the same
reasons, with respect to decisions of the CDS.
[78]
As the CFGB had done, the CDS found the initial investigation
was flawed and did not follow the proper policy and process. He determined
that the investigation including any related documents should be removed from
all files and destroyed. While the Applicant has submitted that the flawed
investigation shows the decision by the CDS was not reasonable, I disagree. Neither
the CFGB finding nor the Decision leads to that conclusion as they both considered
the allegations against the Applicant afresh. In the case of the CFGB, they
found nothing “untoward or unfair” in the action
by the CO to change the Applicant’s unit responsibilities and restrict his
involvement with cadets outside the Cadet program. The CFGB also found there
was nothing untoward in the November 2, 2010 and February 16, 2011 Records of
Discussion that would warrant removing those documents from the Applicant’s
files. Both documents dealt with the alleged behaviour of the Applicant and
the discussion with respect to it. The reasons the investigation was found to
be flawed related to lack of procedural process, not the gathering of evidence,
most of which consists of written materials in the form of letters, emails, or
records of discussion. It does not follow that the fact that the initial investigation
was flawed has any impact at all on the subsequent decisions. Both the CFGB
and the CDS considered the evidence without considering any of the findings of
the investigation report, which they each confirmed was to be removed from the
Applicant’s records because of its flaws.
[79]
I have reviewed the record before the CDS and
find that it more than adequately supports his findings. Even if the margin of
appreciation had been narrow rather than wide, the Decision is defensible on
the facts and law. The Decision addresses each issue raised by the Applicant
or by previous decision-makers in the process. There is sufficient detail and
explanation to be able to understand why the CDS arrived at the conclusions he
did.
[80]
Contrary to the submissions of the Applicant at
the hearing, reasons were provided by the CDS where there was any disagreement
with the recommendations of the CFGB F&R the only two of which were as
follows:
1. the CDS decided documents should be removed from the
Applicant’s file and destroyed contrary to the CFGB F&R that there was
nothing untoward in the documents and no justification to remove them.
The reason provided by the CDS was that to leave
them in the file went against the spirit of the directive to protect members.
2. the CFGB F&R found the remedial measure of Initial Counselling
was of no force and effect because of his transfer to the RF and so it should
be removed from the Applicant’s record. The CDS agreed with that finding but
went further and directed issuance of the new remedial measure of a Recorded
Warning (RW), which is more serious than Initial Counselling.
The CDS provided a very detailed
explanation of his decision to issue a RW which culminated with his conclusion
that the Applicant had not reached the appropriate level of professional maturity
and did not have a clear understanding of the line that must separate personal
from professional relationships.
[81]
With respect to this latter finding Counsel for
the Applicant submitted the CDS did not have the authority to replace the IC
with a RW. However, in Rifai v Canada (Attorney General) 2015 FCA 145,
the Court of Appeal set aside the trial judgment that had arrived at a
similar conclusion with respect to a case involving a military grievance and a
remedial measure. In doing so, the Court specifically found at paragraph 4
that:
replacing a remedial measure relating to
performance with one relating to conduct falls within the discretion and
expertise of the CDS.
[82]
In other words, substituting one form of
remedial measure with another form of remedial measure is within the purview of
the CDS. As a result this action by the CDS is reasonable given the authority
he had, the evidence he considered, and the reasons he gave for removing the IC
and for issuing a RW. Those decisions were well within the special expertise
and authority of the CDS and are defensible on the facts and law.
[83]
Although he succeeded with respect to most of
his grievances, the Applicant was unable to persuade the CDS that the
allegations that he had behaved improperly with cadets were unsubstantiated.
With respect to those allegations the CDS found it was “well
documented” that the Applicant was “advised in
person or via email on nine occasions about the same standard of conduct
deficiencies” and, on a balance of probabilities, the Applicant did not
correct his deficiencies. While the Applicant and his counsel say the CDS made
no explicit finding that the allegations were proven and did not address the
issue that particulars were still not provided, it is clear from the portion of
the Decision dealing with Background, as well as the reasons provided
throughout the Decision, that the CDS did find the allegations were
substantiated even though the investigation was flawed.
[84]
The record clearly supports such a finding by the
CDS. While counsel for the Applicant would have preferred the decision of the
CDS state the underlying particulars of the allegations by chapter and verse
rather than refer to them at a high level, there is no doubt that the CDS made
a specific finding that the allegations were proven. The record contains an
abundance of information from multiple different sources showing the Applicant
was fraternizing with cadets and was inappropriately critical to parents and
others of his COC. The cumulative weight of the evidence is such that had the
CDS found otherwise with respect to the conduct deficiencies that were alleged,
such a finding may well have been unreasonable.
[85]
If the Applicant’s claim that he is entirely
innocent of the allegations is to be believed it would mean that there was a
vast conspiracy which extended not only within the COC, parents of cadets and
cadets, but also involved members of the public external to COATS. There is
absolutely no evidence of such a conspiracy or any apparent reason as to why
one might exist.
[86]
Repeatedly denying events occurred does not in
and of itself mean the allegations are not true. It does mean enough evidence
must support the allegations to allow the decision-maker to determine that it
is more likely than not that they are true. That is the balance of
probabilities test which is the one applicable in this case. Here, there is
evidence that a number of people had concerns about the Applicant’s behaviour
and tried to counsel him to change it. While it is true that at least two
parents of cadets provided letters that supported the Applicant that support largely
revolved around his perceived right to know the precise details of the various
events and the notion that he was being poorly treated.
[87]
In the result, the CDS found the Applicant had
been aggrieved to a certain extent but not for the reasons given by the Applicant.
He determined that a remedial measure was the correct administrative vehicle with
respect to the allegations but the Applicant’s COC had been overly
accommodating and should have issued it earlier in the process. He quashed the
IC remedial measure because it was issued after the Applicant had transferred
to the RF and was therefore issued without proper authority.
[88]
The CDS found the Applicant was aggrieved not
for the reasons he alleged but rather because he “did
not have the opportunity to correct [his] shortcomings and prove to [his] COC
that [he] understood the nature of [his] conduct deficiency.” Contrary
to the submission by the Applicant that the CDS did not make a finding the
allegations were proven, this is a very clear finding of the allegations being
proven. The CDS gave reasons for the finding and explained in the Decision why
officers need to have “a clear understanding of the
line that must separate personal from professional relationship.” For
that reason the CDS determined a new remedial measure should be issued and that
a Recorded Warning (RW) was appropriate for the reasons given.
B.
“Adequacy of Reasons”
[89]
Although not raised in his written Memorandum of
Argument, the Applicant questioned before me whether the reasons rendered by
the CDS were adequate to explain what evidence he considered and how he arrived
at his conclusions particularly as there was no specific finding of fact by the
CDS that the Applicant actually engaged in the conduct as alleged.
[90]
However, the CDS did explain why he made the
findings he did with respect to the allegations and the remedial measure
related to them. As I stated with respect to the standard of review, the
adequacy of a set of reasons is simply part of the analysis of whether the
decision is reasonable. In Nfld. Nurses Justice Abella explains the
concept at this way paragraph 12:
[12] It is important to emphasize the
Court’s endorsement of Professor Dyzenhaus’s observation that the notion of
deference to administrative tribunal decision-making requires “a respectful attention
to the reasons offered or which could be offered in support of a decision”. In
his cited article, Professor Dyzenhaus explains how reasonableness applies to
reasons as follows:
“Reasonable” means here that the
reasons do in fact or in principle support the conclusion reached. That is,
even if the reasons in fact given do not seem wholly adequate to support the
decision, the court must first seek to supplement them before it seeks to
subvert them. For if it is right that among the reasons for deference are
the appointment of the tribunal and not the court as the front line
adjudicator, the tribunal’s proximity to the dispute, its expertise, etc, then
it is also the case that its decision should be presumed to be correct even
if its reasons are in some respects defective. (underlined emphasis in
original) (italicized emphasis mine)
[91]
In summarizing how a reviewing court ought to
judge reasons given by a decision-maker such as the CDS, Justice Abella, at
paragraph 18 quoted from the decision in Canada Post Corp. v Public Service
Alliance of Canada, 2010 FCA 59 by Mr. Justice Evans who said:
. . . “perfection is not the standard” . . . reviewing courts
should ask whether “when read in light of the evidence before it and the
nature of its statutory task, the Tribunal’s reasons adequately explain the
bases of its decision” (para. 163). (my emphasis)
[92]
In Nfld. Nurses
at paragraph 15, the Supreme Court of Canada confirms that a reviewing
court may look to the record to assess the reasonableness of the decision under
review and that reasons need not address every constituent element of the
case. The Court’s instruction at paragraphs 15 and 16 in that respect is very
helpful:
[15] In assessing whether the decision is
reasonable in light of the outcome and the reasons, courts must show “respect for
the decision-making process of adjudicative bodies with regard to both the
facts and the law” (Dunsmuir,
at para. 48). This means that courts should not substitute their own reasons,
but they may, if they find it necessary, look to the record for the purpose of
assessing the reasonableness of the outcome.
[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 (Service Employees’
International Union, Local No. 333 v. Nipawin District Staff Nurses Assn.,
[1975] 1 S.C.R. 382, at p. 391). 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.
[93]
There is a wealth of evidence in the record to
support the reasons of the CDS. In addition to all the evidence, the CDS had
the decision by the IA, the F&R of the CFGB, and the analysis by the DFGA.
I have also reviewed the record including all the reasons provided by previous
decision-makers and of course the Decision under review. I have already
determined that the reasons provided by the CDS are within the margin of
appreciation which is also known as the “range of
acceptable outcomes”. I find the reasons provided are supported by the
record, are defensible on the facts and law, and are justified, transparent and
intelligible. I say this in particular because all of the decisions in the
record also serve to supplement the reasons of the CDS except where he
explicitly disagrees, such as with the lack of process in the initial
investigation and two of the recommendations by the CFGB. For the same reasons
as I stated in reviewing the reasonableness of the Decision, I find there is no
problem with the adequacy of the reasons provided. The Decision is sufficient
to allow me to understand why the CDS decided as he did and I have already determined
that the conclusion of issuing a RW is both within the range of acceptable
outcomes and the authority of the CDS.
C.
Procedural Fairness
[94]
The Applicant has raised two issues under this heading.
The first is that he did not know the case he had to meet because he had
insufficient details. The second is that a de novo consideration cannot
cure this defect. He also alleged the decision-makers failed to take into
account witnesses who were favourable to him.
(1)
Degree of Disclosure Required
[95]
It has been held that “[t]he
level of disclosure required for a named person to be reasonably informed is
case-specific, depending on the allegations and evidence against him or her.
Ultimately, the designated judge is the arbiter of whether this standard has
been met.” Canada (Citizenship and Immigration) v Harkat, 2014
SCC 37 at para 57.
[96]
In a case upon which the Applicant relies,
Knight v Indian Head School Division No. 19 [1990] 1 S.C.R. 653, the Supreme Court
held that an employee who was never officially notified of the reasons for his
dismissal “knew or should have known” why his
employer “was unhappy with his employment contract”
saying he was informed of the reasons through meetings with his employer. In
the process the Supreme Court at paragraph 53 acknowledged and accepted the
statement that “the aim is not to create “procedural
perfection” but to achieve a certain balance between the need for fairness,
efficiency and predictability of outcome”.
[97]
Legislatively the CDS is empowered and directed
by section 29.11 of the Act when acting as final authority in the grievance
process that he “shall deal with all matters as
informally and expeditiously as the circumstances and the consideration of
fairness permit.” This clearly differentiates the level of disclosure
required in the CAF grievance procedure from, for example, charges laid under
the Criminal Code of Canada. Indeed, in Bernath Mr. Justice Noël
when considering whether the CDS was “a court of competent
jurisdiction” within the meaning of section 24 of the Canadian Charter
of Rights and Freedoms found he was not. In arriving at that finding Mr.
Justice Noël at paragraph 98 held that “the legal
foundation for the two proceedings is clearly not the same.” It is
reasonable then to find that the procedural foundation and process are also not
the same as in a court proceeding.
[98]
In my opinion, the Applicant, as evidenced by
his reliance on Stinchcombe, is confusing the “right
to know the case he has to meet” with the high level of disclosure
required of the Crown in criminal matters. However this is not a criminal
case, it is a decision by a specialized administrative tribunal with a high
level of discretion given to the CDS. When he is determining matters “informally and expeditiously” which includes the
merit of grievances and the remedies deemed appropriate, the deference owed to
the CDS is significant as long as procedural fairness is considered as per
section 29.11 of the Act.
[99]
The components of procedural fairness which the
Applicant was entitled to expect are outlined in DAOD 2017-1. They are as
follows:
Procedural fairness requires decision makers
to ensure that the person affected by the decision has the opportunity to
participate in the decision-making process. Under the CFGS, the grievor has
the right to be provided with all relevant documents and other information to
be considered by a redress authority, to comment on this information, and to
receive a well explained, timely and impartial determination of their
grievance.
[100] Considering the procedure as a whole, by the time this matter was
considered by the CDS the complete details had been made available to the
Applicant. Included with the disclosure packages both at the IA and CDS level
were, for example details of the allegations including:
•
emails between members of the CAF concerning the
behaviour of the Applicant as either directly observed by the writer or
reported to the writer
•
emails or letters by parents concerning the Applicant’s
behaviour both in support of him and alleging misconduct by him
•
a detailed three-page typewritten letter dated
March 22, 2011 from a parent of two cadets, who had been friendly with the
Applicant, the contents of which would not leave any doubt in the Applicant’s mind
as to who authored it; included were:
o
details of, amongst other misdeeds, the
allegation that the Applicant provided alcohol to her son
o
the statement that at one time the Applicant “came to me and said even the MP’s questioned how much he
hung out with the cadets”
o
the statement that Applicant did not listen to
or respect the chain of command
o
he shared information inappropriately from
fortress [sic]
•
the detailed allegations supplied in response to
a request for information from the investigating officer by those directly
involved with the Applicant including the CO and ACO against whom he lodged the
complaint
•
a copy of an email from the chair of the
civilian parent committee (a Lieutenant Colonel) which had been sent to the Applicant
admonishing him for contacting the chair “contrary to
proper military protocol”
[101] Having reviewed the record it is clear that some of the file notes
and emails redacted actual names but all contained other significant details
which would make it simple for the Applicant to know who was relaying the
information and which cadets or events were involved. For example, typical are
these two different file notes by the COC, which were disclosed to the
Applicant, describing alleged events:
Mr. [redacted] stopped in to see me, I have
known him for many years, as he is another Professional Engineer with the
Saskatchewan Watershed Authority (unnecessary words omitted). . [the Applicant]
had spoken to him and asked if I had any correspondence related to [the
Applicant] and his son because a complaint was made that [the Applicant] was
having casual non-Cadet related conversations with F/Cpl [redacted] last year.
The instant we had before involved Mrs.
[redacted] and her son. Her son did not get promoted to WO2 as he did not
qualify, however, [the Applicant] was giving the family information, again
undermining the unit and creating a lot of extra paperwork and hardships for
the parents, cadet and myself. He denies this but the information Mrs.
[redacted] had could only have come from an Officer, such as CATO’s and
attendance rates from FORTRESS. Her son was one of the friends [the Applicant]
was known to associate with on a personal basis, and also happens to be the
Cadet that [the Applicant] was accused of serving alcohol to, based on the verbal
statement from his father to me and a verbal statement from his mother.
[102] Clearly there is sufficient detail in these two notes for the
Applicant to understand who the complainant was and which cadet and events were
at issue. Although specific dates may not be in the notes the date the notes
were created is present and, unless the Applicant engaged in such behaviour
more than once, the precise date is somewhat superfluous.
[103] Perhaps one of the most critical pieces of evidence was a three-page
letter sent by a parent who was a friend of the Applicant’s and who was the
mother whose son allegedly was served alcohol. At the beginning of her letter
she indicates she is the parent of two cadets and has concerns regarding the
Applicant “and his close involvement with the cadets.”
She goes on to say:
as time went on my husband would say don’t
you think it’s weird that John always wants to hang out with [redacted]. I
said well maybe but he is only taking him to his plane and he has taught
[redacted] how to drive a stick shift car.
[104] Later on she relays a discussion held during a meeting at Tim
Horton’s with the Applicant, who asked to meet with the writer and her husband.
In the letter she writes that the Applicant said:
he had been calling [redacted] to see if he wanted
to hang out and [redacted]’s reply was no I’m busy, so John’s concern was that
we might be making [redacted] work to much [sic].
[105] This letter and other notes in the record have in common one
concluding theme which is the statement by the author with respect to the Applicant’s
behaviour and attitudes that “he just doesn’t get it”.
[106] The above examples plainly contain enough information as do the
other documents disclosed to the Applicant for him to know the who, the what
and, with some certainty, the when of the various allegations despite
the redaction of the names. There is also other identifying information in the
letters and notes that in most instances would leave a reasonable person in similar
circumstances no doubt as to the identity of both the author and the cadets
involved. The events are well detailed. They were disclosed multiple times to
the Applicant.
[107] I have no hesitation in finding based on the record, the actual
involvement of the Applicant in the process and the very detailed and thorough
compliance with DAOD-2017-1 by the CAF that the disclosure provided to the
Applicant was fair in every respect. The determination that eight of ten of
his grievance components were upheld similarly bears out the legitimacy and
fairness of the process once it reached the CFGB and the CDS.
(2)
De Novo Review
[108]
The Applicant states that a de novo
review in this case is not sufficient to cure the defects in the investigation
of his complaint and the lack of detail in the allegations made against him.
He offers no justification for the statement but, having raised it, I must
address the issue.
[109] In Walsh v Canada (Attorney General), 2015 FC 775 (Walsh)
Mr. Justice de Montigny, as he then was, held at paragraph 51 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.” The reference to McBride
is to the Court of Appeal decision in McBride v Canada (National Defence),
2012 FCA 181, which canvassed at some length the question of whether a de
novo review can cure prior procedural defects and found that in the context
of the military grievance procedure the process followed, which was identical
to the one followed for the Applicant, served to cure the prior breaches.
[110] Both the CFGB and the CDS completely and thoroughly reviewed the
evidence afresh. At each stage the Applicant submitted additional comments and
critiques of the process to that date. No stone was left unturned. Through
the disclosure process, as shown above, complete details of the complainants,
information sufficient to identify the cadets and the events in question were
effectively provided even though actual names were in some cases redacted.
With respect to the names it was submitted at the hearing by counsel for the
Respondent that all names were disclosed to the Applicant. However, as the
record before me had redactions, I prefer to base my analysis on the basis that
some information was redacted. Certainly if nothing was redacted there is no
basis whatsoever for the Applicant’s continued position that he did not know
the case he had to meet.
[111] The CDS had all this information before him. The Applicant in his
defence to the disclosures offered explanations such as the letter writer may
have been unduly influenced by the COC as she declined to report the alleged
event immediately and the letter was not signed. But, the letter was disclosed
to the Applicant several times and while three copies were not signed at least
one copy which was disclosed was signed.
[112] The Applicant says that without specific dates it was hard to defend
the allegations. He may have had an answer to some of the allegations but, if
he did, he never provided it. The Applicant said he was out of the country in
the spring of 2010 on two separate sets of dates for personal reasons. He said
he was in possession of evidence which proved he was not in the province at the
time at which at least one of the events in question was said to have
occurred. The Applicant’s position was if they would supply him with the date
of the events in question he would supply the actual evidence as to his
absences.
[113] Ultimately, the Applicant chose not to deliver the evidence and so
failed to put his full case forward. Regardless of whether he had exact dates
or not it clearly was a risk the Applicant took by not delivering possibly
exculpatory evidence. It is not a matter of procedural fairness or unfairness
when a person under investigation makes a decision not to participate in or
respond to part of the process. That is a calculated decision the consequence
of which the Applicant must accept. Being self-represented is not an excuse
for making a tactical error of such obvious magnitude.
[114] By the time the CFGB and the CDS considered the file de novo all
the allegations were well known by the Applicant and were quite detailed. The
Applicant’s rebuttals were equally detailed and on the record. By that time he
certainly should have presented any documentary rebuttal evidence he had in his
possession. He spent a lot of time dealing with the social media allegation
and criticizing the actions of others in the COC. He stated he feels his “character has been libelled, slandered and defamed due to
the baseless allegations made against him. There has been no basis in fact for
any of the allegations nor has any conclusive evidence been provided to support
them.” He refers to emails and explains why they show the allegations
are not valid. He claims the evidence he provided refuting the allegations
appears to have been ignored or disregarded at all levels. I have already
addressed the fact that the letters tendered from two different parents in support
of the Applicant are in fact in the record. All of this information is in the
record and was before both the CFGB and the CDS as well as the Court. The
decision-makers are not required to refer to each and every specific piece of
evidence.
[115] I find the de novo review greatly assisted the Applicant in
fully developing his position and responding to everything on the record. As
they say, “the proof of the pudding is in the eating”.
In this case, the fairness of the process can be seen in the result which was
highly favourable to the Applicant and was very different than both the initial
investigation and the decision of the IA. The Applicant was in large measure successful
in having his grievance upheld. In part, it was upheld because of his transfer
to the regular forces which rendered some of the issues moot. In other aspects
he was successful because the original investigation into his complaint was
severely criticized by both the CFGB and the CDS, who found it was “flawed and appeared to be biased”, with the result
that the report of the investigation and any related documents are to be
removed from all files and destroyed.
XI.
Conclusion
[116]
The onus was on the Applicant to show why the
Decision was unreasonable. While he still denies the events took place, the
only issue of any substance he has raised was the lack of particulars of the
allegations. I have found the required degree of disclosure was provided to
the Applicant. I will not re-weigh the evidence as that is not my role. I
wish however to assure the Applicant that I have reviewed the record and
considered the matter carefully. I have come to the same conclusion as the CDS
with respect to the allegations of conduct deficiencies. They have been made
out to the required standard of proof on a balance of probabilities or, it is
“more likely than not” that the events occurred.
[117] I have found the process followed was fair. The CDS has been
entrusted by Parliament to determine the appropriate remedy. The issuance of
an RW and the possible investigation of the alcohol allegation do not appear to
be out of line with the conduct which was found to have occurred, they appear
to be reasonable and as stated by the CDS, may help the Applicant.
[118] The Applicant largely succeeded in his grievance. I understand why
he sought judicial review - he still maintains his innocence and he does not
want the RW on his record. But, I am satisfied the issuance of an RW is well
within the expertise of the CDS and is also reasonable. It is not a
disciplinary mark on his record, it is administrative and is meant to assist
the Applicant by assisting him in overcoming the performance deficiency and
providing him with time to correct his conduct or improve his performance.
Similarly, the matter of a possible investigation of the allegation of
providing alcohol to a minor is meant to “clear the
air” and remove any suspicion related to the Applicant’s behaviour. If
there is an investigation and the Applicant has evidence that will exonerate
him it would be prudent to produce it at that time.
[119] For all the foregoing reasons this application for judicial review
is dismissed with costs to the Respondent to be determined on assessment unless
the parties can agree as to the amount within 20 days of the release of this
judgment.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The Application
for judicial review is dismissed.
2.
Costs are awarded to the Respondent. If the
parties cannot agree within 20 days of the date of this judgment on the
appropriate amount of costs then it shall be referred to an Assessment Officer
for determination.
“E. Susan Elliott”
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