Docket: T-447-15
Citation:
2016 FC 468
Ottawa, Ontario, April 26, 2016
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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ANTHONY SNIEDER
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant, Anthony Snieder, retired and was
honourably released from the Royal Canadian Air Force on March 8, 2013. Prior
to his retirement, and while serving at the Canadian Forces Flight Training
School in Moose Jaw, Saskatchewan, Captain Snieder submitted a harassment
complaint in January 2013. This complaint alleged that one of the Applicant’s
fellow officers, Major Chambers, was spreading false statements about him for
the purpose of poisoning his work environment and also was among those members
of the command team trying to prevent him from raising safety concerns.
Ultimately, this complaint resulted in a letter of administrative closure dated
February 27, 2015, whereby Colonel A. R. Day denied the harassment complaint.
The Applicant now applies for judicial review of the decision made by Colonel
Day.
I.
Background
[2]
On January 22, 2013, the Applicant submitted a
harassment complaint about Major Chambers to his Commanding Officer, Lt. Col.
S. Greenough. Because the Applicant raised concerns about the officers in his
chain of command, this complaint, along with the Applicant’s redress of
grievance about how they had handled the complaint, were eventually sent to
Brigadier-General M. P. Galvin who, as the initial authority [IA] under the
grievance procedures established under the National Defence Act, RSC
1985, c N-5 [NDA], issued a decision dated August 1, 2013. General
Galvin concluded that the Applicant’s harassment complaint had been
administered fairly and in accordance with all appropriate Canadian Forces
policy and orders and, therefore, denied the grievance.
[3]
On October 29, 2013, the Military Grievance
External Review Committee [MGERC] found that the IA had improperly focused solely
on the initial complaint filed by the Applicant and recommended that redress be
granted. Since the grievance raised serious allegations about flight safety
concerns which those in the Applicant’s chain of command did not want to
address, the MGERC also recommended that further investigation be ordered. A
year or so later, in a letter dated October 1, 2014, General T. J. Lawson, the
Chief of Defence Staff [the CDS], acting as the final authority under the
grievance procedures established under the NDA, denied the grievance on
the basis that the criteria for harassment were not met. General Lawson
determined he did not fully agree with the MGERC’s recommendations in large
part due to the lack of detail about what, exactly, the alleged harassing
statements had been. In particular, he found that the Applicant had provided
only two of the four required criteria in his complaint, and did not provide
sufficient information about the harassing behaviour. General Lawson also
found, contrary to the MGERC, that without sufficient details of the allegedly
false statements spread about the Applicant, it could not be decided whether
the statements reached the status of improper conduct. As to the flight safety
concerns raised by the Applicant, General Lawson noted that any potential
flight safety concerns had been addressed because the two flight safety surveys
conducted after the Applicant had filed his grievance showed that the 15 Wing
had a sound flight safety culture.
[4]
Several weeks after the CDS’s decision, the
Applicant submitted a letter dated November 17, 2014 to the CDS, outlining
the four incidents in which the alleged harassment occurred and providing
further details. In response to this letter, the CDS advised the Applicant in a
letter dated December 11, 2014, that although the grievance was closed, the
Applicant’s letter had been forwarded to Colonel Day, the officer responsible
for control and administration of personnel at the training facility in Moose
Jaw. In a letter of administrative closure dated February 27, 2015, Colonel Day
determined that, although the complaint should be considered, after review of
the Applicant’s complaint letters and a situational assessment, the elements of
harassment were not met on an individual assessment of each of the incidents.
Colonel Day noted that while it may have been warranted for the Applicant’s
chain of command to be involved to provide closure and a definitive response to
the complaint, it was only after the Applicant had provided additional
information that a conclusion could be reached concerning the alleged harassment.
Colonel Day further noted that with the parties to the complaint no longer
posted to Moose Jaw and the Applicant’s retirement, the parties’ rights and
responsibilities had been met to ensure a safe and harassment free work
environment. Lastly, Colonel Day found that he had sufficient information,
including feedback from Major Chambers, to determine that an investigation
would not be ordered because, despite conflicts in the workplace, the elements
of harassment were not met.
[5]
Following Colonel Day’s decision, the Applicant
sent two letters to General Lawson dated March 5 and 7, 2015, requesting a de
novo review. When the Applicant received no response to this request, he
filed his notice of application for judicial review in this Court on March 24,
2015. This application was subsequently amended to clarify the Applicant’s
request that Colonel Day’s decision, rather than that of General Lawson, be
reviewed and declared invalid. Although these two decisions are linked, only
the decision made by Colonel Day is being judicially reviewed in this application.
II.
Issues
[6]
Although the parties raise various issues
concerning Colonel Day’s decision, in my view, there are four main issues to be
addressed by the Court on this application for judicial review:
1.
Is this application for judicial review moot or
an abuse of process?
2.
Are there any procedural errors such that
Colonel Day’s decision should be quashed on the basis it was rendered in a
procedurally unfair manner?
3.
What is the appropriate and applicable standard
of review in respect of Colonel Day’s decision?
4.
Are there any errors in the substance of Colonel
Day’s decision such that it should be quashed?
III.
Analysis
A.
Is this application for judicial review moot or
an abuse of process?
[7]
The Respondent contends that this proceeding is
moot because the Applicant is no longer a member of Canadian Forces and because
his alleged harasser, Major Chambers (now Lt. Colonel Chambers), is no longer
working in Moose Jaw and, as of July 15, 2015, was posted outside of Canada.
According to the Respondent, the purpose of the harassment complaint mechanism
is to resolve workplace conflict, something which is no longer at issue in this
case. Furthermore, the Respondent says that, even though there is no live
controversy, the Court must nonetheless consider the second stage of the mootness
test emanating from the Supreme Court’s decision in Borowski v Canada (Attorney
General), 1989 1 SCR 342, 57 DLR (4th) 231 [Borowski], and
determine whether it should exercise its discretion to hear and decide the case
on its merits. Since this case will have no practical effect on the parties’
rights, the Respondent submits that judicial economy does not favour the case
being heard. The Respondent also states that because this application is of no
particular public importance, the Court’s refusal to exercise its discretion
will not deprive future litigants of a precedent-setting ruling.
[8]
The Respondent further contends that this
application for judicial review is an abuse of process because the Applicant
has initiated criminal complaints with the Canadian Forces National
Investigation Service [CFNIS] and no longer has a stake in this matter except
to buttress and further those complaints. According to the Respondent, the
CFNIS is an alternate and appropriate forum available to the Applicant to
address his concerns and he has already engaged that process.
[9]
In Borowski, Mr. Justice Sopinka,
speaking for a unanimous Supreme Court, remarked (at paras 15-16) that:
The doctrine of
mootness is an aspect of a general policy or practice that a court may decline to
decide a case which raises merely a hypothetical or abstract question. The
general principle applies when the decision of the court will not have the
effect of resolving some controversy which affects or may affect the rights of
the parties. If the decision of the court will have no practical effect on
such rights, the court will decline to decide the case. This essential
ingredient must be present not only when the action or proceeding is commenced
but at the time when the court is called upon to reach a decision. Accordingly
if, subsequent to the initiation of the action or proceeding, events occur
which affect the relationship of the parties so that no present live
controversy exists which affects the rights of the parties, the case is said to
be moot. The general policy or practice is enforced in moot cases unless the
court exercises its discretion to depart from its policy or practice. The
relevant factors relating to the exercise of the court’s discretion are
discussed hereinafter.
The approach in
recent cases involves a two-step analysis. First it is necessary to determine
whether the required tangible and concrete dispute has disappeared and the
issues have become academic. Second, if the response to the first question is
affirmative, it is necessary to decide if the court should exercise its
discretion to hear the case. The cases do not always make it clear whether the
term “moot” applies to cases that do not present a concrete controversy or
whether the term applies only to such of those cases as the court declines to
hear. In the interest of clarity, I consider that a case is moot if it fails
to meet the “live controversy” test. A court may nonetheless elect to address
a moot issue if the circumstances warrant.
[10]
Accordingly, in a case where there is “no longer a live controversy or concrete dispute” the
case can be determined to be moot (Borowski at para 26). Even if a case
may be moot because there is no longer a live controversy or concrete dispute,
it is nevertheless necessary to determine whether the Court should exercise its
discretion to hear and decide the case where the circumstances warrant. Three
overriding principles are to be considered in this second step of a mootness
analysis: (1) the presence of an adversarial relationship; (2) the need to
promote judicial economy; and (3) the need for the court to show a measure of
awareness of its proper role as the adjudicative branch of government (Borowski
at paras 31-40; see also Harvan v Canada (Citizenship and Immigration),
2015 FC 1026 at para 7, 257 ACWS (3d) 923 and Khalifa v Canada (Citizenship
and Immigration), 2016 FC 119 at para 18, 263 ACWS (3d) 30). The Court
should consider the extent to which each of these principles may be present in
a case, and the application of one or two may be overborne by the absence of
the third and vice versa (see: Borowski at para 42).
[11]
The Supreme Court in Borowski identified
several instances where the Court’s discretion may be exercised to allow it to
hear a case which might otherwise be moot. For example, if: (1) there is
still the necessary adversarial relationship between the parties; (2) the Court’s
decision will have practical effect on the rights of the parties (see Borowski
at para 35); (3) when the case is recurring but of brief duration, such that
important questions might otherwise evade judicial review (see Borowski
at para 36); or (4) where issues of public importance are at stake such that
resolution is in the public interest, although the mere presence of a matter of
national importance is insufficient (Borowski at paras 37, 39).
[12]
In view of Borowski, I find that this
application for judicial review has been rendered moot, and that there is nothing
in the record or in the parties’ written and oral submissions which compels me
to exercise my discretion to determine the Applicant’s application on its
merits. There is no longer any live controversy or concrete dispute arising
from the Applicant’s harassment complaint. The Applicant has been a retired
member of the Canadian Forces since March 8, 2013. Lt. Colonel Chambers is no
longer working in Moose Jaw, Saskatchewan, and as of July 15, 2015 was posted
outside of Canada. The Applicant no longer shares a workplace with his alleged
harasser, and there is no evidence whatsoever in the record before the Court
that any harassment is ongoing despite the Applicant’s retirement.
[13]
Although the Respondent concedes and
acknowledges that Colonel Day’s decision was flawed and unreasonable and should
be set aside, even if, upon judicial review, the Court were to agree with the
Respondent in this regard, remitting the matter back to Colonel Day or some
other responsible officer would serve no practical purpose because the
Applicant is no longer an active member of the Canadian Forces serving with Lt.
Colonel Chambers, let alone working with him in the same workplace.
[14]
This is not an appropriate case for the Court to
exercise its discretion to hear and determine the merits of the application for
the following reasons.
[15]
First, there is no longer an adversarial context
concerning the parties involved in the harassment complaint; a decision by the
Court on the merits of the application will not have any practical effect on
the rights of the parties.
[16]
Second, as to judicial economy: although the
Respondent did not make a motion prior to the hearing of this matter to have
the application dismissed by reason of mootness, an application for judicial
review can certainly be dismissed for mootness at the time of the hearing
without the necessity of a motion prior to the hearing (see, e.g., Gladue v
Duncan’s First Nation, 2015 FC 1194, 259 ACWS (3d) 5). To the extent that
the Court should be mindful of utilizing scarce judicial resources by hearing
matters which are otherwise moot, those resources were already expended upon the
hearing of this matter. Judicial economy is not really a factor, therefore, in
the circumstances of this case.
[17]
Third, the issues raised by this application for
judicial review cannot be characterized as being of such a nature that they
raise important questions which might otherwise evade review by the Court. In
this regard, the Court’s determination in this case, that the application is
moot and the merits should not be determined, must not be taken or interpreted
as suggesting that situations of harassment in the Canadian Forces should
escape judicial review simply because a complainant may no longer be a member
of the Canadian Forces by the time their complaint is dealt with through the
grievance process. On the contrary, the facts of this case are such that the
incidents of the alleged harassment have simply resolved themselves by events
subsequent to initiation of the complaint, notably the fact that the Applicant
and Lt. Colonel Chambers no longer share the same workplace.
[18]
Lastly, despite the Applicant’s arguments and his
views to the contrary as expressed at the hearing of this matter, this
application does not concern issues of such public importance that resolution
of such issues would be in the public interest. Indeed, the evidence before the
Court suggests that the Applicant’s concerns have moved beyond the grievance
process which was fully exhausted and are now with the CFNIS.
[19]
Accordingly, as noted above, this application is
moot and this is not an appropriate case for the Court to exercise its discretion
to review or determine the substantive issues raised by the parties with
respect to Colonel Day’s decision.
[20]
As to the Respondent’s assertion that the
Applicant’s application constitutes an abuse of this Court’s process in a way
that brings the administration of justice into disrepute, I find no merit in
the Respondent’s arguments in this regard. The Applicant’s request in his
amended notice of application for the Court to refer the matter back to a
responsible officer and to direct that such officer “inform
appropriate police authorities that a breach of the National Defence Act has
been alleged by the applicant,” is neither an abuse of the Court’s
process nor does it bring the administration of justice into disrepute. While
this request might have been one which the Court may well have refused had it
exercised its discretion to hear the merits of this application, it was not an
unreasonable request and was well within the boundaries of what relief the
Applicant sought within the context of his judicial review application.
B.
Are there any procedural errors such that
Colonel Day’s decision should be quashed on the basis it was rendered in a
procedurally unfair manner?
[21]
In view of the Court’s determination that this
application is moot and that this is not an appropriate case for the Court to
exercise its discretion to review or determine the substantive issues raised by
Colonel Day’s decision, it is not necessary to substantively address this issue
or the other issues as stated above.
IV.
Conclusion
[22]
Despite the Applicant’s arguments which he
capably advanced on his own behalf, and for the reasons stated above, this
application for judicial review is dismissed.
[23]
There shall be no order as to costs given the
circumstances of this case. The Applicant’s application was in no way an abuse
of the Court’s process, and individuals such as the Applicant should not be
dissuaded from bringing forward military harassment cases for judicial review.
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