Docket: A-302-15
Citation:
2016 FCA 157
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CORAM:
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NADON J.A.
RENNIE J.A.
GLEASON J.A.
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BETWEEN:
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JASYN EVERETT
WALSH
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Appellant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
NADON J.A.
[1]
The appellant, Jason Everett Walsh, seeks to set
aside the judgment of Mr. Justice de Montigny of the Federal Court (as he then
was) (the Judge) dated June 22, 2015 (2015 FC 775) which dismissed the
appellant’s judicial review application of a decision made by the Chief of the
Defence Staff (CDS) dated March 17, 2014 in which the CDS concluded that the
appellant’s release from the Canadian Armed Forces (CAF) “was a reasonable outcome of the nature of [his] repeated
misconduct” (page 12 of the decision). In other words, the appellant’s
grievance from the decision to release him from the CAF was denied.
[2]
I need not repeat the facts as they are well
summarized in the Judge’s reasons (the reasons). Suffice it to say that the
appellant, a master seaman, was released from the CAF on account of three
separate acts of sexual misconduct, that he filed a grievance with respect to
his release and that the grievance was ultimately dismissed by the CDS
following a de novo review of the grievance.
[3]
The appellant says, both in his written and oral
arguments, that he raised seven issues before the Judge and that the Judge
erred in regard thereto. The seven issues raised by the appellant before the
Judge are as follows and can be found at paragraph 2 of his memorandum of fact
and law:
(1) Does
a de novo review cure a serious breach of procedural fairness?
(2) Is a member’s release from the CF declared
void ab initio if the process followed leading to the release is found to have
had significant procedural fairness issues?
(3) Did the CDS fail to provide adequate reasons
as to why he did not accept the findings and recommendations (F&R) of the
Committee?
(4) Did the CDS properly and fully consider all of
the major points advanced by the Appellant throughout the military grievance
process?
(5) Did the CDS properly release the Appellant
from the CF after [he] set aside the original decision from the Director
Military Careers and Administration (DMCA)?
(6) Did the CDS understand, or have an evidentiary
basis to reject, the medical opinion concerning the Appellant’s prescribed use
of Paxil and his continued service in the CAF?
(7) Does the unexplained delay from the CDS to
adjudicate the grievance in a timely manner lead to a breach in procedural
fairness and/or lead to an abuse of process?
[4]
In his written arguments before us, at paragraph
3, the appellant says that another issue must be decided by this Court, namely
whether because the Judge failed to consider most of the issues raised by him
and that the Judge, in effect, adopted the respondent’s version of the facts,
there exists a reasonable apprehension of bias on the Judge’s part. However, to
his credit, the appellant did not raise nor address this issue in his oral
arguments before us and, as a result, we heard no submissions from the Attorney
General on this point. Consequently, I will not address this issue in these
reasons.
[5]
Notwithstanding the appellant’s forceful and well-argued
appeal, I have not been persuaded that there is any basis for us to intervene.
I would further add that, for the reasons given by the Judge, the appeal ought
to be dismissed.
[6]
I am of the view, like the Judge, that the
decision of the CDS, when all relevant circumstances are taken into
consideration, is not one that can be qualified as unreasonable.
[7]
Contrary to the appellant’s submissions, the
Judge gave full consideration to the issues raised by the appellant and the
arguments put forward by him in regard to these issues. Suffice it to read the
Judge’s reasons to be convinced of that proposition.
[8]
After setting out the relevant facts (paragraphs
3 to 17 of the reasons), the Judge turned to the CDS’ decision and examined it
closely (paragraphs 18 to 27 of the reasons). The Judge then turned to the
issues raised by the appellant pertaining to the reasonableness of the CDS’
decision and to the issue of procedural fairness.
[9]
After briefly setting out the appellant’s grounds
of complaint against the CDS’ decision, the Judge explained the legislative and
policy framework applicable to the appellant’s grievance. The Judge then
indicated the standard pursuant to which he would review the CDS’ decision,
namely the standard of reasonableness. However, with regard to the questions pertaining
to procedural fairness, the Judge said he would apply the standard of
correctness. There can be no doubt that the Judge properly identified the
applicable standards.
[10]
The Judge then proceeded to address the question
of whether the CDS’ decision was reasonable. In so doing, he turned to the
specific points raised by the appellant in regard thereto. More particularly,
the Judge considered the appellant’s arguments concerning the adequacy of the
CDS’ reasons in disregarding the recommendation made by the Military Grievances
External Review Committee (the Committee) that he should not be released. The
Judge also considered the question of whether the CDS had taken into account
those medical opinions which, according to the appellant, supported the view
that he was treatable and that his participation in rehabilitation programs
prior to his release had been very positive. The Judge further considered the
appellant’s submissions that the CDS had not properly explained why the chosen
sanction had been release from the CAF and not, as recommended by the
Committee, counseling and probation.
[11]
The Judge found that the appellant’s arguments
were without merit. At paragraphs 37 to 48, he sets out his rationale for
dismissing the appellant’s arguments concerning the reasonableness of the CDS’
decision.
[12]
The Judge makes it clear that, in his view, the
CDS did consider all relevant medical opinions on file in reaching his
conclusion. The Judge also makes it clear that he was satisfied that the CDS
had properly explained in his reasons why he could not agree with the
Committee’s recommendation, adding that the CDS’ reasons were “perfectly intelligible” both in regard to the
Committee’s ultimate recommendation and in regard to those areas where he
disagreed with the Committee.
[13]
The Judge then said that the CDS had also
satisfactorily explained why a de novo hearing could cure a breach of
procedural fairness.
[14]
After commenting that the CDS’ decision to
release the appellant from the CAF might be seen to be harsh, the Judge held
that it could not be said that the decision was “unintelligible
and for which there is no basis in the evidence” (paragraph 43 of the
reasons). The Judge then made the following remarks at paragraph 43 of his
reasons which I totally endorse:
The Final Authority is given a broad
discretion when considering and determining grievances, especially when
identifying the remedies appropriate under the circumstances, because of his
in-depth knowledge of the military environment and operations. These kinds of decisions
are owed a high degree of deference, and I have not been convinced that the
course of action chosen (release instead of counselling and probation) is not
one of the “possible, acceptable outcomes which are defensible in respect of
the facts and law”.
[15]
The Judge then addressed the appellant’s
argument that the CDS had not considered his submissions to the effect that his
usefulness to the CAF had not been affected by his psychological/medical
condition. In making this argument, the appellant made comparisons with other
cases where although the sexual misconduct at issue was definitely more serious
than his, the offender had not been released but sent to counseling and
probation.
[16]
First, the Judge said that he was satisfied that
the CDS had addressed all of the appellant’s submissions, adding that there
could be no doubt that the appellant’s repeated sexual misconduct was at the
heart of the CDS’ determination that he was unsuitable for service in the CAF.
The Judge also indicated that it was clear that the CDS had determined that the
appellant’s acts of sexual misconduct were clearly within his control and that
he was responsible for his actions.
[17]
The Judge also pointed out that in endorsing the
appellant’s release from the CAF, the CDS had concluded, based on medical
opinions, that withdrawal from Paxil, which the appellant had previously taken
for some time, did not explain or justify his conduct in September of 2009 when
his last act of sexual misconduct occurred.
[18]
The Judge then explained why the CDS’ refusal to
consider other causes involving sexual misconduct did not constitute an error
on his part. The Judge made the point that in the context of administrative
review, it was trite law that each case turned on its own facts and that each
decision maker had to make his determination on the basis of the facts before
him and the relevant legal provisions.
[19]
In concluding on the reasonableness of the CDS’
decision, the Judge held that he could not intervene because all of the
appellant’s submissions had been considered and that a reasonable explanation
had been given as to why the CDS was not prepared to overturn the decision to
release him from the CAF.
[20]
The Judge was also of the opinion that the CDS’
decision had been made in accordance with the legislation applicable to the
appellant’s grievance and the decision to release him.
[21]
The Judge also made clear the fact that in
judicial review proceedings his role was limited to reviewing the legality of
the decision in accordance with the applicable principles set out in the
jurisprudence. Consequently, he did not have the power to second guess the
determination and findings made by the CDS in reaching his conclusion.
[22]
The Judge then turned to the issue of procedural
fairness (paragraphs 49 to 54 of the reasons). He began by noting that the
Committee had held that because of flaws in the administrative review process,
the appellant’s right to procedural fairness had been breached. Hence, in the
Committee’s view, the Grievance Process could not remedy these breaches of his
rights.
[23]
As I have already indicated, the CDS did not
agree with the Committee’s view on this issue. Relying on this Court’s decision
in McBride v. Canada (National Defence), 2012 FCA 181, 431 N.R. 383; affirming
McBride v. Canada (Attorney General) et al, 2011 FC 1019, [2011] F.C.J.
No 1250 (QL), the CDS held that a de novo hearing cured a breach of
procedural fairness.
[24]
At paragraphs 50 and 51 of his reasons, the
Judge deals with this issue and explains why he cannot accept the appellant’s
submissions, concluding that “when considered as a
whole, the Administrative Review Process was fair”. I can find no reason
to disagree with the Judge’s conclusion on this issue.
[25]
The Judge then addressed the appellant’s
argument that the long delay taken to determine his grievance constituted a
breach of procedural fairness and/or an abuse of process which necessarily led
to the setting aside of the CDS’ decision.
[26]
After stating that it was undeniable that the
time taken to deal with the appellant’s grievance was “unfortunate”
and that the CDS had recognized in his decision that there was no real excuse
for the four years which had elapsed, the Judge, after referring to the Supreme
Court’s decision in Blencoe v. British Columbia (Human Rights Commission),
[2000] 2 S.C.R. 307, 2000 SCC 44 at paragraphs 121 and 122, concluded that the
evidence before him did not show, in the words of the Supreme Court, that the
delay was “so oppressive as to taint the proceedings”
(paragraph 121 of Blencoe).
[27]
The Judge also remarked that in the light of the
evidence, he could not conclude that the prejudice caused to the appellant was
such so as “to compromise the fairness of the
determination of his grievance” (paragraph 54 of the reasons). Thus, in
the Judge’s opinion, notwithstanding the inconvenience of the delay which had
not been satisfactorily explained by the CDS, no breach of procedural fairness
requiring that the CDS’ decision be set aside had occurred. Again, I see no
basis on which I could interfere with the Judge’s decision.
[28]
I therefore conclude that the Judge made no
reviewable error in concluding that the impugned decision was reasonable and
that no breach of procedural fairness had tainted the grievance process.
Accordingly, there is no basis for intervention on our part.
[29]
For these reasons, I would dismiss the appeal.
However, in the circumstances of the case, I would not make any order as to
costs.
"M Nadon"
“I agree.
Donald J. Rennie J.A.”
“I agree.
Mary J.L.
Gleason J.A.”
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