Fourth Maritime Operations Group v. Anderson, docket A-722-95

     A-722-95

OTTAWA, Ontario, Thursday, October 24, 1996.

CORAM:      STONE J.A.

         LINDEN J.A.

         HENRY D.J.

B E T W E E N :

OPERATIONS OFFICER, FOURTH MARITIME OPERATIONS GROUP, COMMANDER, FOURTH MARITIME OPERATIONS GROUP, COMMANDING OFFICER, FLEET MAINTENANCE GROUP PACIFIC, COMMANDER, MARITIME FORCES PACIFIC, COMMANDER, MARITIME COMMAND, CHIEF OF THE DEFENCE STAFF, and MINISTER OF NATIONAL DEFENCE

     APPELLANTS

     (Respondents)

     - and -

ROBERT DAVID ANDERSON

     RESPONDENT

     (Applicant)

HEARD at Vancouver, Friday, October 11, 1996.

Judgment rendered at Ottawa on Thursday, October 24, 1996.

REASONS FOR JUDGMENT BY:      STONE J.A.

CONCURRED IN BY:      LINDEN J.A.

     HENRY D.J.

     A-722-95

CORAM:      STONE J.A.

         LINDEN J.A.

         HENRY D.J.

B E T W E E N :

OPERATIONS OFFICER, FOURTH MARITIME OPERATIONS GROUP, COMMANDER, FOURTH MARITIME OPERATIONS GROUP, COMMANDING OFFICER, FLEET MAINTENANCE GROUP PACIFIC, COMMANDER, MARITIME FORCES PACIFIC, COMMANDER, MARITIME COMMAND, CHIEF OF THE DEFENCE STAFF, and MINISTER OF NATIONAL DEFENCE

     APPELLANTS

     (Respondents)

     - and -

ROBERT DAVID ANDERSON

     RESPONDENT

     (Applicant)

     REASONS FOR JUDGMENT

STONE J.A.

         The principal issues raised in this appeal from an order of the Trial Division of November 1, 1995 refusing to strike the Respondent's Originating Notice of Motion are, first, whether the decision in question is "a decision or order of a federal board, commission or other tribunal" within the meaning of subsection 18.1(2) of the Federal Court Act and, second, whether it should nonetheless be struck on the ground that there is available to the Respondent an adequate alternative remedy which he has chosen not to exhaust. Two subsidiary issues were argued, namely whether the Respondent should have the option of moving to strike all but the Chief of the Defence Staff and the Minister from the style of cause and whether the proceedings is directed against more than "a single decision" within the meaning of Rule 1602(4).

         On December 7, 1994, the Respondent was issued Counselling and Probation ("C & P") of six months duration by the Commander, Fourth Maritime Operations Group D.E. Collinson, who certified that the action had been taken in accordance with Canadian Forces Administrative Order 26-17 ("CFAO 26-17"). Shortly thereafter, on December 12, 1994, counsel for the Respondent submitted an application for redress of grievance, in which he described the redress requested in the following terms:

The redress requested is the immediate quashing of the Counselling and Probation, and the removal from all files of any record of it having been issued.

together with reimbursement of legal fees. The relief requested appears to have been based on allegations of procedural unfairness and reasonable apprehension of bias. The application was dealt with by the Commander, Maritime Forces Pacific (Rear Admiral Johnston) who informed the Respondent by letter of March 22, 1995 that he did not support the application. The application for judicial review of that decision followed on April 24, 1995.

         It is apparent that the objective which the Respondent seeks to achieve by way of the judicial review proceedings is a clearing of his service record. This was noted by the learned Motions Judge at page 9 of this reasons where he stated:

The questions of time and resources are pertinent here. Counsel informed this Court at the hearing of the respondents' within motion that the applicant had already undergone his counselling and probation without ill effect, so he must now be maintaining his application only in an attempt to wipe the disciplinary measure of counselling and probation off of his service record.

         I shall deal firstly with the second issue. At page 7 of his reasons, the Motions Judge alludes to the common law principle that remedies such as those sought on the application for judicial review i.e. certiorari and mandamus, ought not to be granted by a court possessing jurisdiction if it is satisfied that there is available to the applicant an adequate alternative remedy. As he put it, there is a "well known proposition that applicants ought to exhaust all of their available, or at least proximate, avenues of redress before seeking judicial review". Judicial review will not be granted if there is an adequate alternative remedy that has not been exhausted. The criteria to be applied for determining whether an adequate alternative remedy exists are discussed in the leading case of Harelkin v. University or Regina, [1979] 2 S.C.R. 561">[1979] 2 S.C.R. 561, at page 588, where Beetz J. stated:

In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors include the burden of a previous finding, expeditiousness and costs.

         In two recent decisions of the Trial Division it was held that the Court would not review the decision under attack because an adequate alternative remedy was available under the Queen's Regulations and Orders for the Canadian Forces ("QR & O"): Downey and Simpson v. The Queen (Court File No. T-937-85, rendered May 16, 1985, unreported; Dressler v. Canada (1989), 30 F.T.R. 13. More recently, in Gayler v. Director of Personnel, Careers Administrator, Other Ranks et al. (1994), 88 F.T.R. 241, the Trial Division held that the applicant therein was entitled to proceed by way of judicial review. It noted at page 247, however, "that only the Chief of Defence Staff has the authority to overturn the decision". That is not the situation here, in my view.

     In order to assess the adequacy of the alternative remedy in the light of the circumstances, one must take account of the legal framework out of which this matter emerges. Section 29 of the National Defence Act R.S.C. 1985, c. N-5 provides that:

...an officer or non-commissioned member who considers that he has suffered any personal oppression, injustice or other ill treatment or that he has any other cause for grievance may as a matter of right seek redress from such superior authorities in such manner and under such conditions as shall be prescribed in regulations made by the Governor in Council.

The policy is apparent, that a complaint such as the one here in issue is to be dealt with within the Canadian Forces in the manner prescribed by the regulations.

         The "regulations" are the QR & O and in particular Articles 19.26 thereof. Paragraph (1) defines "redress authority" as "a commanding officer, an officer commanding a formation or command, the Chief of the Defence Staff or the Minister". Paragraph (2) requires, subject to Article 19.26(12), that "a complaint under this article shall be submitted through the chain of command". By paragraph (3), a redress authority is required to cause a complaint "to be investigated as expeditiously as possible". Provision is then made for submitting a complaint upward through the chain of command wherever the decision at a particular stage does "not afford the redress that, in the opinion of the member, is warranted". Paragraphs (10), (11) and (12) are worth reciting. They read:

(10) Every redress authority who receives a complaint in writing shall:

(a) where it is within that authority's power to afford redress,

(i) take the necessary action, if the redress authority is personally satisfied of the justice of the complaint, or

(ii) return the complaint to the member and inform the member that the complaint has not been redressed because the redress authority is not personally satisfied of the justice of the complaint; and

(b) where it is not within that authority's power to afford redress,

(i) forward the complaint to the next higher redress authority in the chain of command, if the authority is personally satisfied of the justice of the complaint, or

(ii) return the complaint to the member and inform the member that the complaint has not been redressed because the redress authority does not have the power to afford redress and that the authority is not personally satisfied of the justice of the complaint.

(11) A redress authority shall complete the action required under paragraph (10),

(a) where the redress authority is a commanding officer, within 30 days of receipt of the complaint by that authority;

(b) where the redress authority is an officer commanding a formation, within 90 days of receipt of the complaint by that authority; and

(c) where the redress authority is an officer commanding a command, within six months of the receipt of the complaint by that authority.

(12) Where a redress authority referred to in paragraph (11) does not make a decision in respect of a complaint of an officer or non-commissioned member within the period required under that paragraph, the member may submit the complaint in writing directly to the next higher redress authority in the chain of command.

Although time limits are prescribed in Article 19.26(13) of the QR & O for submitting a complaint to a redress authority, a commanding officer is, by paragraph (15) thereof, granted a discretion to deal with a complaint that is filed out of time where he "considers that having regard to the circumstances, it would be in the interests of justice to do so".

         In addition to paragraph 19.26 of the QR & O, various provisions of CFAO 26-17, are pertinent. Paragraphs 1 and 6 read in part as follows:

1. A recorded warning (RW) and counselling and probation (C & P) are administrative devices designed to raise a member's performance or conduct to an acceptable standard... .

6. The following policies apply to C & P initiated for all shortcomings including those related to drugs and alcohol:

...

b. C & P may be initiated by a CO or higher authority.

...

e. The probation period shall be for a period of six months, except that

...

(2) the initiating authority may terminate the C & P if the member overcomes the shortcoming or, conversely, fails to show the required degree of effort to improve or is guilty of an offence related to the shortcoming.

f. If C & P is unsuccessful, the CO shall initiate release of the member.

g. If a member objects to a C & P report, the provisions of QR & O 19.26 and 19.27 apply.

         It is convenient at this juncture to set forth the text of Rear Admiral Johnston's decision of March 22, 1995. He wrote:

1.      I have reviewed your application for Redress of Grievance, reference A, in which you requested being removed from Counselling and Probation for abuse of authority and inappropriate actions towards subordinates.

2.      With respect to your being landed, the Commanding Officer made this decision because he determined it to be the most appropriate action in the circumstances.

3.      In terms of the nature of the investigation, CFAO 19-39 allows the unit the discretion to conduct either an informal investigation, a summary investigation, or a board of inquiry. In this case, Capt(N) Collinson determined, in light of all the circumstances, that a summary investigation would be the most appropriate form of investigation.

4.      Given the fact that the Investigating Officer and the Regional Social Work Officer came to the same conclusion, on completion of interviews with MS and Mrs. Rodighiero, I am satisfied that your dealings with MS Rodighiero and his wife constituted harassment.

5.      As to the Summary Investigation conducted by Commander Riggs, first of all there is no evidence of actual bias on his part so I must reject that assertion. As to procedural fairness, you were clearly aware of the matters being considered by the investigating officer and had adequate opportunity to respond. Procedural fairness does not require, in these circumstances, the right to cross examine or the right to legal representation. I am not persuaded, after reviewing all the relevant material, that the Summary Investigation was unfair.

6.      It follows that I do not accept your claim of legal fees and expenses. The decision to seek legal advice was personal on your part, and the expense is personal.

7.      I am satisfied that the Summary Investigation supports the findings and recommendations contained therein. Therefore, regrettably, I do not support your application for Redress of Grievance. Should you be dissatisfied with my response, you may request, through the Chain of Command, to have your application reviewed by higher authority.

         The Appellant submits that this disposition by Rear Admiral Johnston was governed by subparagraph 10(b)(ii) of the QR & O, because "it is not within that authority's power to afford redress" in that by subparagraph 6.e.(2) of CFAO 26-17 Rear Admiral Johnston - not being "the initiating authority" - was not in a position to "terminate the C & P". The Respondent asserts that this cannot be so because the relief he requested of Rear Admiral Johnston was not that of "terminating the C & P" but of quashing Captain Collinson's decision imposing it. I agree with that position.

         It does appear from the language in which Rear Admiral Johnston couched his decision that he was not there disposing of the complaint under subparagraph 10(b)(ii) of the QR & O because nowhere in his letter of March 22, 1995 did he purport "to inform the member that the complaint has not been redressed because the redress authority does not have the power to afford redress" but only that he did "not support your application". It is also apparent that he did not "inform the member that the complaint has not been redressed because the redress authority is not personally satisfied of the justice of the complaint". It seems to me, however, that by saying that he did not "support" the complaint he was indicating, in effect, that he was not personally satisfied of its "justice". By making the application to the Trial Division, the Respondent obviously concluded that the decision of Rear Admiral Johnston did "not afford the redress that, in the opinion of the member, is warranted". In those circumstances, it was open to the Respondent to seek redress at the next step in the chain of command above Rear Admiral Johnston, namely to the Commander, Maritime Command who, like Rear Admiral Johnston, was endowed with the same authority of redress "if...personally satisfied of the justice of the complaint". It seems to me that the power to quash a C & P on the ground the process under which it was imposed was defective is vested in the Commander, Maritime Command under subparagraph 10(a)(ii) to the same extent that it was vested in Rear Admiral Johnston.

         I now turn to the application of the criteria in Harelkin, supra, for determining whether an adequate alternative remedy exists. As I conceive it, the Motions Judge rested his view on the inadequacy of an alternative remedy on the time that would be consumed in pursuing the complaint up the chain of command and the cost and stress for the Respondent in so doing. As I have already indicated, it would not, in my view, be futile to submit the complaint to the Commander, Maritime Command, because he too is vested with the same power of redress.

         Admittedly, the time required to pursue a remedy by way of judicial review would, in all likelihood, be less than would be required for submitting the complaint up the chain of command. On the other hand, Article 19.26 of the QR & O, requires a complaint to be dealt with as "expeditiously as possible" and lays down in paragraph (11) strict time limits within which decisions are to be made by a particular redress authority below the Chief of the Defence Staff. While, as we have seen, a C & P decision may in some circumstances lead to the "release" from the Canadian Forces of a member affected, release of the Respondent cannot occur because, as the Motions Judge noted, the Respondent "had already undergone the counselling and probation without ill effect". What remains for him is his desire to "wipe the disciplinary measure...off of his service record". Pursuing redress up the chain of command would mean taking at least one more step i.e. submitting the complaint to the Commander, Maritime Command. There can, of course, be no assurance that the Commander, Maritime Command, would grant the relief sought but neither can it be safely predicted that he would refuse to grant it. Thus, there exists the availability of the remedy at the very next step in the chain of command if the redress authority could be satisfied of the "justice" of the complaint i.e. that procedural fairness was not accorded in the circumstances or that there was a reasonable apprehension of bias present in the first step process. In the circumstances I am satisfied that the factor of delay is not such as to warrant the Court's intervention at this stage.

         Nor am I satisfied that the cost and stress of pursuing the complaint up the chain of command justifies the Court in interfering with that process. Although the Motions Judge regarded these as valid factors, there was no evidence before him in relation to either of them. Indeed, his view was based to some degree on speculation that the Respondent does not have "the resources to push onward and upward". Moreover, I do not understand the complaints procedure as unduly costly. The procedural rules are set forth in Article 19.27 of the QR & O, paragraph (1) of which reads:

(1) A complaint in writing submitted by an officer or non-commissioned member under article 19.26 (Redress of Grievance) shall contain:

(a) a statement of the facts of the situation giving rise to the complaint;

(b) a statement of the redress sought;

(c) a written statement from any individual upon whom the member is relying to substantiate the complaint; and

(d) a copy of any document upon which the member is relying to substantiate the complaint.

This betrays a simple and straightforward procedure. Moreover, paragraph (3) of the same article provides for assistance to a member in preparing a complaint, upon request made to the Commanding Officer. It also appears that, as a complaint of this kind proceeds by way of a paper hearing, the primary cost is associated with the preparation of the complaint. Retention of outside legal counsel would no doubt add to the cost of taking the next step. On the other hand, the comprehensive letter of legal counsel of December 12, 1994 appears to sufficiently define and address the issues the Respondent wishes to pursue for the purposes of the next step as well. Therefore, I do not regard cost as determinative.

         In summary, I am of the view that the process mandated by section 29 of the National Defence Act and as laid down in Articles 19.26 and 19.27 of the QR & O did afford an adequate alternative remedy and, accordingly, that the application for judicial review should be struck.

         In view of the conclusion I have arrived at on the second issue, it is not necessary to consider the remaining ones. I should do so, however, in the event I am wrong in the views I have expressed on the second issue. The first issue raises the question whether the decision contained in Rear Admiral Johnston's letter of March 22, 1995 constitutes "a decision or order" within the meaning of subsection 18.1(2) of the Federal Court Act. The Appellant contends that it is not such a decision or order because, in the words of Pratte J.A. in Lingley v. New Brunswick Board of Review, [1976] F.C. 98 (C.A.), at page 101, it did "not, in law, settle a matter and [had] no binding effect". In the submission of the Respondent the decision did in law settle the matter insofar as Rear Admiral Johnston was concerned and had binding effect because Rear Admiral Johnston acted within his mandate in refusing to quash Captain Collinson's decision of December 7, 1994 and also because, unless that decision be quashed, the C & P order of Captain Collinson will remain forever on his service record. I am inclined to accept the Respondent's submission. In my view, the decision of March 22, 1995 did settle the matter which was before Rear Admiral Johnston to decide and that decision is binding on the Respondent. The fact that he was entitled to pursue the matter up the chain of command did not render the decision any less final or binding at that stage despite the fact that it might conceivably be overturned at the next step by another redress authority.

         The third issue concerns the form of the order below. In disposing of the motion to strike, the Motions Judge included the following paragraph in his order of November 1, 1995:

THIS COURT FURTHER ORDERS that the motion for striking out all of the respondents, except the Commander, Maritime Forces Pacific, be and it is also dismissed without costs; and the applicant is accorded the option to leave the style of cause as is, or to seek an order eliminating all the above named respondents except the Chief of the Defence Staff and the Minister of National Defence; and

He set forth the rationale for this paragraph at pages 9-11 in his reasons, in the course of which he stated:

In cases such as this, there ought appropriately to be two respondents, the Minister and the Chief of the Defence Staff, representing the civil authority, and its subordinate military authority, who, like the Minister of Citizenship and Immigration in immigration matters, can serve as the overall respondents in all national defence cases where judicial review is sought, thus avoiding unnecessary guessing, confusion and mystery. One should always seek efficacy by simple, not complex, means. In so proceeding with simplicity as herein proposed, the applicant would, of course, pin-point the impugned decision and the decision maker, just as in immigration cases. The decision and decision maker always operate under the aegis and authority of the respective respondents. Simplicity with efficacy is always to be sought.

         With respect, in my opinion the only person who needed to be joined in the judicial review application at this stage was the person whose decision is sought to be reviewed - that of the Commander, Maritime Forces Pacific. It would clearly be premature to join the Chief of the Defence Staff or the Minister at this stage where a decision of neither of them is sought to be reviewed.

         Finally, I agree that Captain Collinson's decision of December 7, 1994 could not be reviewed on an application to review Rear Admiral Johnston's decision of March 22,1995 for the simple reason that Rule 1602 (4) requires an application to be "in respect of a single decision": MacInnis v. Canada (Attorney General), [1994] 2 F.C. 464 (C.A.).

         I would allow the appeal and would strike the Originating Notice of Motion filed April 14, 1995. In view of the novelty of the issue and the fact that the Respondent's arguments were not devoid of merit, I would make no order as to costs.

     "A.J. STONE"

     J.A.

"I agree

A.M. Linden J.A."

I agree

D.H.W. Henry D.J."

                         FEDERAL COURT OF CANADA

                         Court No. A-722-95

                     BETWEEN:

OPERATIONS OFFICER, FOURTH MARITIME OPERATIONS GROUP, COMMANDER, FOURTH MARITIME OPERATIONS GROUP, COMMANDING OFFICER, FLEET MAINTENANCE GROUP PACIFIC, COMMANDER, MARITIME FORCES PACIFIC, COMMANDER, MARITIME COMMAND, CHIEF OF THE DEFENCE STAFF, and MINISTER OF NATIONAL DEFENCE

    

     - and -

ROBERT DAVID ANDERSON

             ________________________________________

                     REASONS FOR JUDGMENT

     ________________________________________