Docket: A-293-14
A-292-14
Citation: 2015 FCA 145
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CORAM:
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NOËL C.J.
SCOTT J.A.
BOIVIN J.A.
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BETWEEN:
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ATTORNEY GENERAL
OF CANADA
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Appellant
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and
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NABIL RIFAI
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Respondent
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Heard
at Montréal, Quebec, on June 15, 2015.
Judgment delivered from the Bench at Montréal, Quebec, on June 15,
2015.
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REASONS FOR JUDGMENT OF THE COURT BY:
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BOIVIN
J.A.
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Docket: A-293-14
A-292-14
Citation: 2015 FCA 145
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CORAM:
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NOËL C.J.
SCOTT J.A.
BOIVIN J.A.
|
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BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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Appellant
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and
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NABIL RIFAI
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Respondent
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REASONS FOR JUDGMENT OF
THE COURT
(Delivered from the Bench at Montréal, Qu ebec, on June 15, 2015.)
BOIVIN J.A.
[1]
We are of the opinion that the appeal should be
allowed in both dockets.
[2]
Although the applicable standard of review in
this case is reasonableness, as the Federal Court judge acknowledges in his
reasons, he did not afford the administrative decision any deference.
[3]
With regard to the decision concerning the
remedial grievance [A-293-14], it is important to note that according to section 29.13
of the National Defence Act, R.S.C. 1985, c. N-5 [the Act], and the
case law, the Chief of the Defence Staff [CDS] is not bound by the
recommendations of the Committee and may render a decision de novo. For
example, a breach of procedural fairness in issuing a remedial measure in the
Canadian Forces can thus be corrected (McBride v. Canada (Minister of
National Defence), 2012 FCA 181 at paragraphs 41-45; Schmidt v. Canada (Attorney General), 2011 FC 356 at paragraphs 16-20.
[4]
Although the judge referred to the recognized principle,
he departed from it in his reasons. The judge therefore erred in law in
deciding that the Committee, which he inappropriately characterized as a “Tribunal”,
had decision-making authority. This mistaken approach jeopardized the judicial
review. Finally, replacing a remedial measure relating to performance with one
relating to conduct falls within the discretion and expertise of the CDS. In
this case, the CDS provided reasons for his decision (see subsection 29.13(2)
of the Act), and having regard to the record as a whole, the decision falls
with a range of possible, acceptable outcomes which are defensible in respect
of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190).
[5]
With regard to the Federal Court’s decision on
the release grievance [A-292-14], we are of the opinion that in dismissing the
application for judicial review conditionally, subject to an unsolicited condition
precedent, and in interfering with a possible future grievance proceeding that
at this point is a matter of pure speculation, the judge made a jurisdictional
error by exceeding the limits of subsection 18.1(3) of the Federal
Courts Act.
[6]
Consequently, in docket A-293-14, the
appeal will be allowed. The judgment of the Federal Court judge will be set
aside, and rendering the judgment that should have been rendered, the
application for judicial review of the decision of the CDS will be dismissed,
with costs both here and below.
[7]
In docket A-292-14, the appeal will be
allowed. The Federal Court judge’s conditional dismissal of the application for
judicial review and the conditional orders he made will be set aside, and
rendering the judgment that should have been rendered, the application for
judicial review will be dismissed, without costs.
“Richard Boivin”
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